Can you hold employees on FMLA intermittent leave to the same work standards as others?

What should employers do if an employee’s work performance suffers while he or she is taking FMLA intermittent leave? Can you terminate employees when their work falters because of those absences? One court last month sent a clear message: “Don’t go there!” It said employees exercising their FMLA rights should not be held to the same production standard as full-time employees who are at work everyday. Disciplining or firing such workers could earn you a one-way ticket to an FMLA retaliation lawsuit.

Case In Point: Debra Lewis, a bookkeeper for an Illinois school district, performed her duties very well and earned good reviews. But when both her parents became terminally ill, she requested and was given a flex-time schedule and was allowed to bring some work home.

The superintendent soon complained that Lewis was missing too much work and it was burdening her co-workers. The school board wanted her fired for poor performance, but the superintendent expressed fear of FMLA liability. So instead, he offered Lewis 12 weeks of unpaid intermittent FMLA leave. Lewis accepted.

Lewis was still expected to perform the duties of a full-time bookkeeper while on intermittent leave. The school board didn’t hire a part-timer or ask co-workers lend a hand. Lewis worked nights and weekends to catch up with her work, but it was all unpaid.

The school board, at tape recorded meetings, said it wanted to fire Lewis and called the FMLA “ludicrous” and a “fiasco.” The board told the superintendent to build a case against Lewis based on her poor performance so she could be terminated. Eventually, Lewis was given a choice: resign or take a demotion and salary cut based on her poor performance.

Lewis took the demotion and filed an FMLA lawsuit. The school district argued that it had a legitimate non-FMLA reason to fire her: poor performance. (Lewis v. School District #70, 4/17/08)

How did this case end … and what lessons can be learned?

While a lower court sided with the school district, the 7th Circuit appellate court reversed, saying Lewis can take her retaliation claim to trial.

The court said the school district made no attempt to alleviate the impact of her intermittent leave. As a result, “a reasonable jury could conclude that the school district expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis. Arguably, when her periods of intermittent leave prevented her from timely completing all of the duties she had performed as a full-time bookkeeper, she was removed from her position. Viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory.”

3 Lessons Learned … Without Having to Go to Court

1. Don’t retaliate! When employees are out on FMLA leave, you can’t realistically expect them to do the same amount of work as if they were there full-time. As in this case, if you discipline FMLA-takers for lower production because they are on leave (as in they have “left” the workplace) you are retaliating against them and that is unlawful.

2. Don’t slam the laws. The court noted the disparaging remarks the school board made about the FMLA and used those comments to show negative bias. The laws are the laws. If you don’t like them, send a message with your vote, not through treatment of employees.

3. Shut up and take cover. No employer likes to have employees miss work for any reason. However, keep your lips zipped and cover your organization’s needs with temporary assistance. It is cheaper than a lawsuit, creates good-will and keeps the organization moving forward.