Can you consider FMLA leave in employee’s review?
Q. We have an employee who takes a lot of intermittent FMLA leave for medical reasons. We are writing her performance appraisal and need to address topics such as dependability, reliability, etc. Her FMLA leaves are affecting these issues. Does the law regulate whether we can lower her performance review or merit increases based on her FMLA leave? —G.L., Massachusetts
A. FMLA leave, especially intermittent leave, raises difficult issues for employers. Here’s the simple answer: You can address non-FMLA absences, and you can discuss how changes in the employee’s dependability (outside of FMLA leave) have impacted his or her performance.
However, you can’t reduce the employee’s score or merit increase because he or she has taken intermittent FMLA leave. As long as the employee is legally entitled to take that leave, you should not make any comments—oral or written—suggesting that the person is being penalized for taking FMLA leave.