If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

Taking FMLA leave doesn’t give employees automatic immunity from discipline or termination. But your managers still need to use extreme caution when they make staffing decisions involving employees on leave.

In one recent case, an employee came back from leave to find that her job had been eliminated. The company had no other job to offer her, so she was let go.

The employee sued.

The company argued that she would have lost her job anyway. But the court didn’t buy it. Here’s why:

First, the employer couldn’t prove the woman’s job would’ve been eliminated if she never took leave. In fact, the manager didn’t decide to downsize until after the woman took leave, and he saw that the remaining employees handled the work.

Second, two positions were filled after the company decided to terminate the woman, but before she was told. According to the court, the employee was “arguably qualified” for both jobs, so the company should have made her an offer before hiring other people.

Questions for managers

Just because employees take FMLA leave doesn’t mean they can never be disciplined or terminated. But before managers make any staffing decisions regarding employees on leave, they should be able to answer the following questions:

• Can we prove it would’ve happened anyway? — When a job is eliminated, companies need to prove the decision would have been made whether or not the employee took leave. Normally, that means the decision was in the works before the employee left. Often, the decision’s made once a manager sees that the work is still getting done without the employee. But that explanation will not hold up in court.
• Can we show there’s no relation to the leave? — Employees on FMLA can still be fired for poor performance — as long as the problems have nothing to do with taking leave. For example, if an employee can’t meet a production quota because he missed work for intermittent FMLA, that’s not a legitimate reason to fire him.
• Is there another position we can offer? — As the case above shows, courts look pretty closely to see if a company could have offered an equivalent job. Managers need to be careful here, too — the courts are pretty picky about what jobs are equivalent. For a job to be considered equivalent, it must be “virtually identical” to the former job in terms of pay, benefits and working conditions.

Cite: Stephens v. Neighborhood Service Organization