Employers must adjust employee performance standards to avoid penalizing employees on FMLA leave


Suppose one of your employees, a widget maker, takes leave under the Family and Medical Leave Act.

As a widget maker, the employee has a monthly quota of 100 widgets. The FMLA does not require an employer to adjust its performance standards for when an employee is on the job. So, before and after they take leave, the company can hold that employee to the monthly quota of 100 widgets.

It’s a different story during leave. The company must adjust performance standards to avoid penalizing employees for being absent during FMLA-protected leave. Otherwise, the company could be facing FMLA interference and retaliation claims.

For example, if the employee misses half a month on FMLA leave, their widget quota for that month should be 50 instead of 100.

Got all that?

Last night, I read a recent Seventh Circuit decision involving an employee whose job involved training workers to help integrate new operations into the company. Her deadlines were tight; the company provided just four months to absorb and train employees following two recent acquisitions.

During this period of expansion, the plaintiff took continuous and intermittent FMLA leave. By her account, she missed more than 6 weeks of work over 30 weeks, or about 1 day off per week on average.

Using our example above, one would expect the defendant to maintain the plaintiff’s quotas before and after her FMLA leave. However, it should not have held her to a 100% workload during the leave when she spent only 80% of the time in the office. But, according to the plaintiff, the defendant cut her no slack and eventually fired her. So, she responded with a lawsuit alleging FMLA interference and retaliation.

The District Court granted summary judgment in favor of the employer. However, the Seventh Circuit Court of Appeals reversed, concluding that “a jury could find that [the defendant] interfered with or retaliated against [the plaintiff’s] use of leave by holding her to standards that were at least as demanding as when she worked full time, and then firing her for falling short,” based on the plaintiff’s evidence she missed about one day each week on approved FMLA. “This evidence of unadjusted performance standards, despite her approved absence for 20% of full-time work,” reasoned the Seventh Circuit, “would allow a jury to conclude that [the defendant] both interfered with her leave-taking rights and retaliated against her by firing her.

Will the plaintiff eventually prevail? Not if the defendant had other non-FMLA-related reasons for ending her employment.

If your company ends up in a similar position, cut the employee on FMLA leave some slack.

“Doing What’s Right – Not Just What’s Legal”
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