Many employers get concerned that once an employee has been out on Family and Medical Leave Act(FMLA) leave, they sort of have a free ticket to do whatever they want per FMLA regulations. In this hub, we’ll go through some good examples that work through the issues in employee performance and the FMLA.

An employee has been taking a significant amount of intermittent FMLA leave. As a result of the absences, the employee is missing deadlines and making mistakes. To what extent can you discipline the employee for these mistakes?

The problem here you have to keep in mind is that clearly, an employee who had a full-time job for instance and had a certain level of responsibility is going to be hard-pressed to get it all done on a part-time schedule. If an employee has requested to take intermittent absences or a reduction in the total work schedule, it's almost impossible to see how that employee can get the whole job done on the limited amount of time.

FMLA regulations say the standards have to be reasonable based on the leave

Employers have got to be careful when somebody goes out on intermittent FMLA leave not to discipline somebody for not getting something done that really could not reasonably be done given the modified schedule.

If they were supposed to, in a given month, make 1,000 sales calls and now they can only make 500 sales calls, that’s okay in terms of FMLA regulations. But revise the expectations. They now expect the employee to do 500 sales calls. That’s what's reasonable given this schedule that you're now going to be taking.

When the employee only makes 200 sales calls, what you're comparing to is the reduced expectation. This performance goal takes into account the FMLA leave. You would not want to be disciplining somebody too harshly for them not being able to do essentially the full-time job when they have a limited work schedule.

Take a look and try to adjust the expectation so that if you have to discipline somebody for missing the expectations, what you're disciplining them for is based upon the modified expectations that would comply with the law. That’s an important thing to keep in mind.

What is generally recommended for you is when you have somebody go out on intermittent leave for any significant time period, such as once a week somebody misses an hour or two; it's worth it going through this process to re-evaluate their performance metrics.

But if you have somebody who has had a drastically reduced schedule as a result of intermittent leave request, it's a very good idea to revise the expectations for what you want this employee to do in terms of job performance.

Don't discipline them for absences that are protected by FMLA regulations.

When you adjust those expectations appropriately and then there continue to be the performance deficiencies, that’s when you can go in and consider the discipline.

FMLA regulations and conduct issues

Here is an example of another entirely different type of conduct issue. This is an employee who’s been taking intermittent FMLA leave. When the employee is away one day, the supervisor goes to the employee’s computer to get some files, which is not at all inappropriate, discovers that the employee has been viewing inappropriate adult material on the internet. Is the employee’s job protected under these circumstances?

The answer is going to be generally no. As long as you can demonstrate that you have a neutrally applied, equally applied policy that would discipline anybody for inappropriate adult material being viewed on the internet using the company computer, do not be concerned about disciplining somebody under that circumstance.

If you can show that it's evenly applied and it’s not unique to this one situation, then go ahead and take care of disciplining somebody in that situation.