February 28, 2024

FMLA Requires Adjusted Work Expectations, Not Just Schedules

For two consecutive years a supervisor received positive performance reviews. Towards the end of this time, the supervisor took FMLA leave consecutively and intermittently. Interesting, the employer’s HR representative testified the employee used only about ten days of leave in a five-month period. The supervisor testified she used approximately six weeks of FMLA leave in the same period.

During this time, the supervisor failed to meet deadlines and employee satisfaction decreased, including in her department. The employer received a complaint of workplace bullying by one of the supervisor’s employees. The employer issued to the supervisor a performance improvement plan. The court describes a soft-sell, telling the employee it was not formal, it was not because of poor performance, and it was just to “tighten up” expectations. The court also noted the PIP “did not warn [the supervisor] that deficient performance under the plan would jeopardize her job.” Two months later, after missing one deadline, the supervisor was fired.

The supervisor sued for FMLA intereference and retaliation. The lower court granted the employer’s motion to dismiss the case on both counts. On appeal, the 7th U.S. Circuit Court of Appeals (covering IL, IN, WI) disagreed and remanded the case to the lower court. Why? The dispute between the parties regarding the amount of FMLA leave time the employee used was “material” to the case.

The court held “a jury reasonably could find that when an employee is available for work only 80% of a full-time schedule, and the reason for the 20% shortfall is because she has taken protected leave, the employer must adjust its expectations to comply with the Act.”

Lesson learned. My biggest question is where is the FMLA Designation notice? The court does not mention it. The FMLA requires covered employers to issue this notice to an employee using covered leave so both parties are informed as to what time is/not being counted as FMLA leave.  Ensure you are issuing that notice on a timely basis. Do so not only because it is legally required, but it can also provide documentation to support your position.