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Plan to pick up slack when FMLA leave cuts worker output

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

The FMLA allows qualified employees to take up to 12 weeks of unpaid leave within a 12-month period. The law allows employees to take that leave intermittently under some circumstances.

For better or worse, intermittent leave sometimes has the effect of turning a full-time job into a de facto part-time one. Presumably, a full-time job includes enough work to keep an employee fully engaged. That means an employee taking intermittent leave probably won’t get everything done.

It doesn’t mean employers may punish the employee for failing to complete that work. (Doing so will almost certainly spur the employee to file an FMLA interference and retaliation lawsuit.) As the following case shows, it’s up to the employer to figure out how to fill the gap.

Recent case: Bookkeeper Debra Lewis worked for a school district for years without any performance problems. Then she had a terrible year personally. Both parents became terminally ill, and five other family members or close friends passed away. Lewis used up all her available sick, personal and vacation leave to care for her increasingly ill parents.

Her work performance also slipped since she was missing deadlines. That’s when her supervisor suggested she take unpaid intermittent FMLA leave whenever she was needed at home. He also suggested she take as much work home as possible so that she could get her job done.

Lewis agreed. Meanwhile, the school district neither assigned some of Lewis’ work to someone else, nor did it hire a part-time bookkeeper. Instead, the school board got regular reports about her decreasing productivity.

Because the school board sessions were recorded, everything that it discussed about Lewis was available to the court later. In one session, a board member lamented the very existence of the FMLA, stating that the law is “just ludicrous.” He said, “It’s such a fiasco that you can’t just say, ‘thank you for your services, goodbye.’” During another session, the superintendent tried to forestall Lewis’ termination, arguing that she was “helping the budget because she’s … being docked because she’s exhausted all her [paid time] and she’s 22 [days] in the hole.”

Eventually, the board fired Lewis for not doing her job. She sued, alleging retaliation and interference with her FMLA rights.

The 7th Circuit Court of Appeals ordered a trial. It said there was evidence from which a jury might conclude that Lewis was essentially being forced to do all the work she would have done had she not been on FMLA leave—rendering her FMLA leave “illusory.” (Lewis v. School District # 70, et al., No. 06-4435, 7th Cir., 2008)

Final note: Don’t suggest that employees on FMLA leave take work home. Adjust any productivity goals to account for the time off. And arrange for someone else—another staff member, a temp from an agency or a supervisor—to pick up the slack. It’s your responsibility. 

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