Performance review may need to reflect FMLA leave, appeals court says

Dive Brief:

  • Employers may have to adjust their performance expectations of an employee who takes leave under the Family and Medical Leave Act to reflect the employee’s reduced hours, according to a Feb. 28 ruling by the 7th U.S. Circuit Court of Appeals.
  • While an Illinois healthcare system was undergoing a significant expansion, a training manager took FMLA leave, although the parties disputed the amount, according to court records in Wayland v. OSF Healthcare System. Citing performance issues, the company fired her two months after her leave ended, and she sued it for allegedly violating the FMLA.
  • The 7th Circuit held that if a jury believed the manager was available for work only 80% of her full-time schedule because the other 20% she took protected leave, it could find the employer denied her the benefit of that leave by failing to adjust its expectations about her workload. The case was sent back for trial.

Dive Insight:

As HR professionals know, the FMLA raises all sorts of compliance issues. One of the more challenging is making sure employers don’t “interfere” with an eligible employee’s rights under the statute.

Relevant here, the FMLA doesn’t require an employer to adjust its performance standards for the time an employee is actually on the job, the 7th Circuit pointed out. But employers may be unlawfully interfering with an employee’s FMLA rights if they don’t adjust performance standards to avoid penalizing the employee for being absent during approved leave, the panel explained.

For example, an employer that generally requires shifts longer than eight hours, may have to adjust its expectations of an employee who is unable to work more than eight hours a day for FMLA-qualifying reasons, the U.S. Department of Labor indicated in a 2023 opinion letter.

Under these circumstances, the FMLA may allow an employee to use leave for the remainder of each shift, and the hours the employee would have otherwise been required to work are counted against their FMLA leave entitlement, the letter explained.

In this case, during the six months the manager was approved for FMLA leave — which coincided with the healthcare system’s expansion — she was allegedly told that she and her staff had “no choice” but to meet accelerated goals, according to court documents. An HR agent stated in an affidavit that the manager took only 10 days of FMLA leave during this time. But in her sworn statement, the manager said she missed about six weeks of work due to FMLA leave.

The dispute had to be resolved by a jury because if the jury believed the manager, it could find the healthcare system interfered with her use of FMLA leave by “insisting on 100% of the workload to be performed in only 80% of the time,” the 7th Circuit said.

Similarly, a jury could find the healthcare system retaliated against the manager by firing her because, due to her use of FMLA leave, she didn’t live up to that standard, the court said. The healthcare system argued that it had other reasons for firing her, including that she didn’t meet the requirements of a performance improvement plan implemented after her leave ended.

But the manager presented evidence that her supervisor and the HR agent didn’t regard the plan as having any bearing on her legitimate job performance or tell her that deficient performance plan would lead to discharge, the 7th Circuit noted. It vacated summary judgment for the healthcare system and remanded the case for trial.

By contrast, a Texas employer defeated an HR manager’s claim she was fired in retaliation for taking FMLA leave after her leave ended by presenting “strong evidence” that she was fired for poor performance. The 5th Circuit upheld summary judgment for the employer, noting that the HR manager was on a performance improvement plan before she took leave and a colleague had reported her for discussing an employee issue on speakerphone while other people were present.