It’s OK to address earlier performance problems after employee returns from FMLA leave

Employees who take FMLA leave sometimes think their supervisors aren’t allowed to criticize any performance deficiencies that occurred before the leave began. That’s just not true.

Taking FMLA leave doesn’t change a thing about an employee’s pre-leave performance.

You can and should discuss any previous performance problems when the employee returns if you didn’t have a chance to address them before. Just make sure you can document pre-existing problems so it doesn’t look like you suddenly decided to address problems because the worker took protected FMLA leave.

Recent case: Debra worked for the Drexel University College of Medicine for several years before she scheduled time off to have carpal tunnel surgery.

Because everyone knew she would be taking leave, her supervisors worked with her to come up with a list of tasks that she should complete before her surgery. Then she went out on FMLA leave.


Shortly before Debra was scheduled return to work, her mother died. She requested a short extension of her leave and the college granted the request.

When Debra did return to work, she was called into a meeting with her boss and the employee who had taken over her tasks while she was on FMLA leave. The meeting had been scheduled to discuss the transition back and to address the work Debra was supposed to have completed before she went on leave for surgery.

Debra became upset during the meeting because her co-worker and supervisor didn’t offer condolences for her mother’s death and instead began criticizing her failure to handle the pre-leave tasks. She said, “I quit” and left the meeting.

Then she sued, alleging that Drexel had violated the FMLA when it disciplined her just hours after her return from leave. She claimed she had no choice but to quit because conditions were intolerable.

The university conceded that the meeting might qualify as disciplinary in nature, but that Debra’s reaction was out of proportion to the discussion. Debra wasn’t being demoted and didn’t lose any benefits or pay. She was merely being asked to take constructive criticism for not having completed the tasks she had agreed to complete before taking leave.

The court agreed. The FMLA doesn’t require a warm welcome back. Nor does it require an employer to ignore prior performance problems.

The court also concluded that Debra’s resignation didn’t amount to a constructive discharge, since she sought to rescind the resignation the following day. That showed that conditions could not have been “intolerable” the day before. (Checa v. Drexel University, No. 16-108, ED PA, 2016)

Note: In this case, the employer had clearly outlined the tasks it wanted Debra to complete before she went on leave. Had it instead come up with a new list of complaints while she was out, the result might have been different.

Remember, employees taking FMLA leave aren’t entitled to greater rights because they take leave. However, employers also have to avoid making it appear as if they are looking for an excuse to punish an employee who takes leave. Pre-leave documentation is key.

Final note: Debra had also tried to make much of the lack of apparent empathy for her mother’s death. But the court was unmoved. While it may be nice to offer condolences, not doing so doesn’t violate the FMLA.