Avoid FMLA suit: Cut slack for leave-takers

Employees who are so sick they need FMLA leave certainly can’t perform essential job functions while on leave. Employers must alter their workload expectations accordingly.

If they don’t, and then later punish the employee for poor performance, an FMLA interference lawsuit is almost sure to follow.

Examples of adjustments that may have to be made: extending project deadlines, getting co-workers to pitch in, lowering sales goals and making other changes that ensure the employee won’t be forced to work while on leave.

Recent case: Jeff worked in sales and was never criticized for his performance. Then, around the same time he developed heart problems, a new system was put in place to evaluate sales efforts and set goals. Shortly after a brief FMLA leave, Jeff was informed that he wasn’t meeting those goals, especially for daily calls and sales visits.

Then, one day after undergoing medical tests for a possible lung tumor, Jeff’s new supervisor de­­manded a “ride along” to assess his performance. It didn’t go well since Jeff hadn’t had time to set up sales calls in advance from the hospital. He was fired.

FMLA Compliance D

Jeff sued, alleging interference with his right to take FMLA leave free from work demands.

The 7th Circuit Court of Appeals sided with him and said the case should go to trial. It noted that the employer appeared to have counted even the days Jeff spent undergoing heart procedures when calculating his call productivity. That meant his average daily call count fell, unfairly contributing to his poor performance rating. (Pagel v. Tin, No. 11-2318, 7th Cir., 2012)

Final note: The timing in this case was also highly suspect. Jeff suddenly found himself under scrutiny just days after notifying the employer about his heart problems and tests.