FMLA can be a tricky topic in and of its own. But when you’ve got a mixture of performance issues and FMLA going on, things get complicated quickly. This recent post from Reddit is a great example:
While this employee knows she’s had performance issues, everything now is all jumbled up. It’s hard to tell whether management is reacting against her FMLA request or truly addressing performance. This is how lawsuits happen.
So, how should you respond when an employee with performance issues requests FMLA leave?
Know what FMLA is.
It’s important to know at least the basics of what FMLA is and how it works, especially if you don’t have an HR department. Under the Family and Medical Leave Act, eligible employees are entitled to 12 weeks of leave in a 12-month period for certain medical- or family-related reasons. The law applies to government employers as well as private employers with more than 50 employees. If you have more than 50 employees, the law automatically applies to you.
The law doesn’t require that the leave be paid. Most organizations require employees to use their paid time off during the FMLA. Some organizations provide additional paid time, such as a certain amount of paid maternity leave. Once any paid leave is exhausted, the remainder of the 12 weeks is unpaid (unless the employee is eligible for disability pay).
Keep performance and FMLA separate.
Upon this manager receiving her FMLA request, he should have responded with support – not talked about her performance issues. A much better response would have been along the lines of, “Thanks so much for letting me know. What do you need?”
As much as possible, keep FMLA and performance issues in separate discussions. When discussing performance issues, don’t talk about FMLA. When discussing FMLA, don’t bring up performance issues. If you’re talking about performance issues and the employee brings up a question about FMLA, then close out the performance topic first. Then, make it clear you’re switching gears to talk about FMLA.
If these topics get entangled, employees may easily develop concerns that their FMLA rights are being violated because of their performance issues. Keep the topics separate.
Continue to address performance – carefully.
If you’re about to issue disciplinary action when an employee goes out on FMLA leave, just hit the pause button on performance. I’ve had this happen a number of times, especially when a final notice is involved. Don’t get stressed about it. Handle the FMLA leave appropriately. When the employee returns from leave, pick up where everything left off and issue the disciplinary action.
In this particular case, the employee says some of her performance issues are related to her medical condition. Chances are, that means the ADA might be involved as well. The ADA requires employers (with 15 or more employees) to provide reasonable accommodations for employees whose disabilities impact their lives.
If an employee says that his or her performance is being affected by a medical condition, engage in the interactive process to find out what the employee needs. The law does require an employee to be able to fulfill the essential functions of the job in some way. So, you’ll look at what the employee needs and what you’re able to provide.
In this case, it may be that FMLA leave is all her doctor says she needs. But, say her doctor later indicates she needs to work from home related to her condition. You’ll need to review that as an ADA accommodation request. If she works in IT and her job can be done from home, it may be reasonable. If she’s a nurse in a hospital, it may not be.
In the midst of FMLA and the ADA, you can still uphold performance expectations. But be very cautious if the performance issues are related to the medical condition or FMLA/ADA request.
Say you have an administrative assistant with a broken foot who has an ADA request to work from home. You can still expect him to answer phone calls, respond to emails, and follow directions. But you wouldn’t penalize him for not coming to the on-site weekly staff meeting. (Hopefully, there would be a way for him to call in, but I’m just making a point.)
If the performance issues are related to the medical condition, I would get guidance from an employment attorney. Same thing if you’re addressing issues with an employee who has an ongoing ADA request. These situations can get complicated quickly.
Photo credit: By Matej Zukovic / Canva
