February 25, 2020

February 24, 2020

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Be Wary of Potential FMLA Violation before Terminating Employee for Failure to Meet Performance Standards During Intermittent Leave

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule.  Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.  However, an employer may be required to make adjustments to productivity requirements and quotas to account for time off the employee takes that is designated as FMLA.  In Holland v. The Methodist Hospitals (N.D. Ind. Sep 30, 2016) Plaintiff claims that her employer interfered with her right to FMLA leave by not excluding leave under the FMLA from time worked when calculating whether she met her quota.  As a result, Plaintiff claims that she was unable to meet the required quota for the number of accounts she was assigned per day.  Her productivity ratings were therefore negatively impacted by the time she spent on job protected FMLA leave.

The Court held that the grant of an FMLA leave request may be “illusory” if the employee is held to the same performance or quota standards as if the employee were working her full hours.  In other words, it’s no different from telling an employee she can take FMLA leave while at the same time telling her she must make sure she works the same number of hours.

An employer can require an employee to maintain certain quality of work standards, but the quantity of work standards may need to be adjusted.  Employers may confuse this issue with the FMLA’s provision that allows an employer to deny a bonus or other payment that is based on the achievement of a specified goal such as hours worked or products sold, if the employee has not met the goal due to FMLA leave.  The FMLA guarantees a right to unpaid leave, therefore denying pay where an employee is not producing at the same level does not interfere with employee rights.  Taking disciplinary action, however, after failing to adjust performance standards could mean that the FMLA leave the employer granted to the employee  was illusory and the employer interfered with the employee’s rights under the Act.

Jackson Lewis P.C. © 2020


About this Author

Tasos C. Paindiris, Employment Attorney, Jackson Lewis Law Firm

Tasos C. Paindiris is a Principal in the Orlando, Florida, office of Jackson Lewis P.C. His practice concentrates on advising clients in many different areas of workplace law.

Mr. Paindiris's experience includes representing clients in a variety of forums, including state and federal courts, the state and federal Departments of Labor, state and local human rights agencies, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Workers’ Compensation Commission, and state unemployment compensation departments.