FMLA, Performance Deficiencies, When and How to Address?

Submitted by Federated Insurance

QUESTION
We have an employee who is on leave under the FMLA. No performance deficiencies had been addressed with the employee prior to the leave, but multiple issues were found after she started leave. Can we address them right out of the gate when she returns? Also, our level of business has slowed down due to COVID-19. Does that figure into the equation anywhere?

ANSWER
No federal or state law prohibits the employer from addressing legitimate performance deficiencies when the employee returns to work, assuming this is consistent with company policy and practice (we assume no contrary contractual obligations exist).

As such, yes, the employer would generally be within its discretion to discuss with the employee (when she is back at work) any issues that were discovered while she was on leave, though the employer should be careful to refrain from any indication that the employer is only raising such issues because the employee had gone on leave, for example, or that the leave was at all a factor. If the employer accuses the employee of this, the employer should at that point rebut any accusations she may make that are erroneous. You indicate that the “level of business has slowed down due to COVID-19.” If this somehow impacts the employee’s work, the employee is not entitled to better or more preferential treatment merely because she exercised leave rights under FMLA. As a general matter, the employee would be subject to any legitimate work-changes as a result of any COVID-19 impact on the business, just as she would had she not taken leave. Given the risks, the employer would do well to clearly convey any changes due to the pandemic as such, carefully refrain from any suggestion that such changes are somehow related to her leave and/or pregnancy (or any other protected characteristic), and document the same. We recommend reviewing the DOL guidance on “Limitations on an Employee’s Right to Return to Work” at page 65 of the Employer’s Guide to FMLA which is an excellent resource for employers relative to FMLA compliance, generally.