Disciplining FMLA leave-takers

Do your line managers know how and when they can discipline employees who take FMLA leave?

Obviously, you can’t reprimand or fire somebody for taking FMLA leave — and you shouldn’t want to. That’s illegal retaliation, and we hope your managers know it.

But what happens when you have to discipline folks for misconduct or poor performance — and they just happen to have taken FMLA leave recently? Can you do it? Or are you just asking for trouble?

Of course you can and should discipline these workers, just as you would any other employee in the same situation.

That said, you must be very careful how you do it.

What you can do
According to Linda Hollinshead, an employment law attorney at Duane Morris, you can:

1. Discipline an employee for non-FMLA-related misconduct that you learn about as a result of the FMLA absence. Example: An employee takes a week of FMLA leave. During his absence, a supervisor logs on to his computer to access urgent files and finds he’s been moonlighting on company time. You can apply whatever discipline is applicable under your policy.

2. Discipline someone who is taking intermittent FMLA leave and fails to meet an agreed-upon, adjusted level of performance. Example: An employee takes leave two afternoons a week for medical treatment. You and she agree she should be able to complete two production reports a week, instead of the usual three. She repeatedly fails to submit the two reports. You can discipline her for underperforming, because this is independent of the leave. But make sure to document your adjusted performance agreement.

Here’s where it gets complicated: If an employee makes mistakes or misses deadlines as a direct result of FMLA leave, and you haven’t adjusted your expectations, you’re on very thin ice if you try to discipline the person. Example: Your employee is taking two afternoons off a week for medical treatment. But you don’t adjust her workload and you never discuss your expectations. If she starts missing deadlines, you might just have to live with it.