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When an employee is out on FMLA leave, employers have to be careful about balancing their need for full staffing so they can get the work done and the worker’s right to take leave.

If missed work poses a problem, the best approach is to focus on specific work deficiencies that aren’t related to FMLA-protected absences. In other words, when an employee’s nonattendance affects the quantity of her work, focus instead on the quality of the work that does get done.

Recent case: Julie Long worked in the electronic funds transfer office of a retirement system. She began missing lots of work. In fact, she started out the year by missing 25% of her scheduled work hours. By summer, she was out of the office 40% of the time. Naturally, that meant some work didn’t get done.

Around the same time, her supervisors noted that she had been making lots of mistakes. They met with Long to discuss her absenteeism and poor work, and her boss warned her that her job was on the line.

Long was informed that she might be eligible for FMLA leave for some absences and she applied for intermittent leave based on two medical conditions: tennis elbow and ovarian cyst treatment. She continued to miss work, and only some absences qualified for FMLA leave.

Long was finally fired for poor performance. She sued, claiming she had been terminated as punishment for taking FMLA leave.

But the court rejected her claim. It found the decision to terminate her had been based on poor work before she took FMLA leave. Plus, it wasn’t the volume of the work that led to her termination, but the lousy quality of the work she did get done while present. (Long v. Teacher’s Retirement System of Illinois, No. 08-3094, 7th Cir., 2009)

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