That’s fine, as long as you set reasonable parameters for taking leave and enforce the rules fairly.
Recent case: Warren, who suffers from chronic obstructive pulmonary disorder, earned so-so. One review said he needed improvement, while another admonished him for low productivity. He did earn one “satisfactory” rating.
Then Warren broke his elbow. Between his respiratory problems and the elbow, he took several medical leaves of absence, using up his available leave.
His employer had an additional discretionary program for employees experiencing health crises. It was available to those who had earned “exemplary”. Warren applied, but was turned down. Then he was discharged.
He sued, alleging that he had been rejected because he was disabled.
But the employer showed the court that it had only approved discretionary leave for employees with excellent performance reviews. Warren’s case was tossed out. (Balgley v. New York City Health and Hospitals Corporation, No. 14-CV-9041, SD NY, 2017)