Often an employer must adjust an employee’s performance standards once it approves the employee’s FMLA leave request.  Not long ago a Federal Circuit Court spelled it out for LR practitioners on both sides of the table. 

An employee had been approved for FMLA leave, but was subsequently terminated for performance problems. (Pagel v. TIN, (7th Cir 2012))  When the employee’s challenge got to the appellate level, that court summarized the relationship between FMLA leave and performance standard adjustments as follows::

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave. In Lewis v. School District #70, 523 F.3d 730, 743 (7th Cir. 2008), for example, we reversed the district court’s grant of summary judgment for the employer on an FMLA claim. There, the employee offered evidence that her employer had expected her to complete all the duties of a full-time bookkeeper while she was taking intermittent FMLA leave, and then fired her for failing to meet that full-time standard. Id. at 736-37. We concluded that the performance problems that supposedly justified the termination were a direct result of her FMLA leave so that termination for those reasons would have made her FMLA leave “illusory.”

The Court went on to explain how it will look behind a simple management conclusion that the employee had failed to meet standards and actually examine the reasonableness of the standard under the employee’s FMLA circumstances. In this case, it wrote the following:

The record suggests that account managers need time to set up a sales call—perhaps as much as one week. Because Pagel was only given one day to set up sales calls in a city he did not previously intend to visit, it is no wonder that everyone agreed that he could have done a better job. Certainly, a reasonable jury could interpret this evidence as Kremer setting up Pagel for failure.

Consequently, when union members take leave the union might want to remind them that they should be on the lookout for performance issues arising and if so to come see the union rep for help.

(Originally posted December 2, 2012)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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