FMLA may require you to adjust employee performance standards

I’m back, jack.

And I have some hella-tough shoes to fill, following Janette Levey Frisch‘s killer two-part guest-blogger series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. You can find Part One here and Part Two here.

So, we all know by now that if a disabled employee requests that his employer afford him a reasonable accommodation to allow the employee to perform the essential functions of his position, the employer must do so (assuming a reasonable accommodation exists). That’s ADA 101.

But, let’s shift gears a bit and talk FMLA. Assume an employee has an FMLA-qualifying condition and will be out on FMLA leave for several weeks. Does the employer violate the FMLA by: (a) failing to make a reasonable adjustment to its employment expectations to account for the FMLA-protected leave, and then: (b) terminating the employee for failing to meet those unadjusted expectations.

According to the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. (opinion here), the answer is yes. Here’s the explanation:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.




At summary judgment, Pagel presented evidence showing that TIN terminated him in part for not meeting sales expectations, even though he had missed a number of days for FMLA treatment….He also presented evidence showing that Kremer relied on inaccurate data in finding that Pagel did not meet some of the company’s reporting requirements. TIN subsequently admitted to some of these inaccuracies….Based on this evidence, Pagel has presented enough evidence to meet his initial burden.

A plaintiff’s lawyer will salivate at this fact pattern. Me? I know I’ll have my work cut out for me. Putting aside the obvious — the employer apparently failed to adjust performance requirements to account for FMLA-qualifying leave — it further appears that the employer failed to hire slow and fire fast. That is, if the employee was having performance issues pre-FMLA and not meeting numbers, then the employer should have acted on it quickly before that FMLA request was made. Because now it looks fishy.

And the jury will be left to question the timing.

You may also enjoy this post from Jon Hyman at the Ohio Employer’s Law Blog addressing whether asking an employee to take a psychological examination could create problems under the ADA.

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