Once an employee has used up her, she isn’t entitled to more time off to balance work and life obligations unless she has other types of leave available. The provides up to 12 weeks off, but that’s all.
Despite the FMLA’s protections, supervisors are free to insist on consistent attendance. They can require employees to meet job goals as long as they don’t interfere with theirand don’t treat them differently than employees who haven’t exercised their FMLA rights.
Simply put, regular attendance is a reasonable work expectation.
The FMLA was intended to give employees flexibility to deal with extenuating circumstances such as a lengthy illness, but it doesn’t throw attendance expectations out the window.
Recent case: Pamela worked in medical sales. When her daughter developed medical problems, she began missing work.
Her supervisor discussed her declining performance and the two agreed Pamela would take FMLA leave for 12 weeks to care for her daughter.
After returning from leave and using up all her other available time off, Pamela continued to call in and miss work. Within a few weeks, she had missed three full days, either because she was sick or she had to take her daughter to medical appointments.
She was told that herwasn’t acceptable and placed on a performance improvement plan.
During one meeting (which Pamela secretly recorded), a supervisor questioned her ability to balance her work responsibilities with her parental obligations. He suggested that perhaps the job wasn’t a good match for Pamela’s current life challenges.
Pamela was fired after she didn’t meet her performance improvement plan goals. For example, she failed to make at least three sales call per day and to increase her sales by 5% per month until they hit her employer’s expectations for someone in her position.
She sued, alleging retaliation for taking FMLA leave. She argued that she should have been provided more time off to balance her work and personal life. She pointed to the FMLA itself, which Congress had declared was designed to balance family needs with work.
The court tossed out her case. It said Congress only intended for covered employers to provide up to 12 weeks of leave per year, requiring nothing more after employees exhaust that allotment. It concluded that Pamela wasn’t retaliated against for taking FMLA leave. The court called her employer’s expectations legitimate, not punishment for taking leave in the first place. (Lorentz v. Alcon Labs, No. 13-20049, 5th Cir., 2013)
Final note: Be careful if an employee takes FMLA leave for her own disability but can’t return to work after 12 weeks. In that case, more time off may be a reasonable accommodation under the ADA. That’s especially true if she needs just a few weeks more for full recovery and her doctors have provided an estimated return-to-work date. However, you don’t have to provide more time off if doctors can’t estimate when the employee will return.
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