Performance management is one of the most important–and difficult–issues that employers face in supervising their workforce. Dealing with performance problems becomes even harder when an underperforming employee requests or takes leave under the FMLA or as a reasonable accommodation under the ADA, both of which are generally classified as “job protected” absences.  Employers are often, and understandably, confused about their rights and obligations in such a situation.

Perhaps the most important thing for employers to keep in mind is that while FMLA and ADA leaves are legally protected absences, that protection is not absolute.  Neither law stops an employer from terminating an employee for reasons unrelated to the leave, meaning that an employee who is on or has returned from FMLA leave can be terminated for poor performance if he would have been fired for his performance even if he hadn’t taken leave.

But because FMLA leaves and ADA accommodations are legally protected, termination decisions in this context pose an obvious increased risk of retaliation and discrimination claims.  As a result, it becomes even more important for employers to ensure they are properly evaluating the employee’s performance. 

Here are some important things for employers to bear in mind as they do so:

• Treat the leave and performance management as completely separate issues.  For example, consider the employee who seeks intermittent FMLA leave to help treat a chronic condition while she is on a performance improvement plan.  The fact that the employee is on a PIP is not a reason to deny or delay providing the relevant FMLA paperwork, approval, or time off.  By the same token, however, taking the FMLA leave does not shield the employee from consequences for ongoing or future performance problems.
• Address performance issues promptly.  In examining FMLA or ADA retaliation, courts often look to see whether there is suspicious timing surrounding the termination.  That includes not just how close in time the termination happened in relation to the leave, but also whether the employer had already been addressing the performance deficiencies before the leave started. A supervisor’s procrastination in addressing performance problems can make termination decisions following a leave request much riskier.
• Use objective, job-related criteria to evaluate performance.  While there is obviously a subjective component to performance management, the reality is that courts tend to be more skeptical of termination decisions that rest heavily on subjective criteria.
• Contemporaneously document performance problems.  This is a universal best practice, but especially important for errors discovered while an employee is on leave.
• Lean on HR’s expertise.  It can be wise to have HR independently review the performance deficiencies to help ensure that termination is justified.
• Be consistent in applying the relevant policies and performance criteria, and make sure you’re treating this employee the same way you’ve treated others with similar performance issues. This is an area where HR’s insight can be extremely valuable.
• Ask yourself: Would you take the same action if the employee hadn’t taken leave?  If your answer is anything other than an unequivocal yes, consider other alternatives aimed towards improving the employee’s performance.
• Tell the employee why you are terminating their employment.  Although it is not legally required to tell employees why they are being discharged, employers are typically wise to do so.  Termination reasons that are a secret or come as a surprise are more likely to be questioned, and thus challenged, by the employee.