When it comes to managing employee performance issues, many employers struggle with whether or not protected leave—such as leave under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA)—creates a barrier to addressing legitimate performance concerns. The reality is that employees on protected leave are not per se “untouchable,” and employers retain the right and responsibility to maintain performance standards, provided they comply with all applicable laws.
Employers are required to safeguard employees’ rights to protected leave under state and federal law, but this does not mean that performance issues must be ignored or reset when an employee requests or takes protected leave. If performance concerns existed prior to the leave, employers can continue to address those issues upon the employee’s return, provided they do so consistently and fairly. Protected leave offers job protection, not immunity from performance management.
To remain compliant and minimize risk, employers should:
- Ensure that all performance issues are thoroughly documented as they occur, and ideally before any leave request is made. Objective documentation is crucial in demonstrating that concerns pre-date the protected leave and are not retaliatory.
- Resume or restart performance improvement processes after the employee returns, allowing for a reasonable “ramp up” period rather than simply disregarding past performance records.
- Review medical certifications carefully. If the documentation provided for leave is vague or questionable, employers have the right to seek clarification – by going back to the employee – especially when certifications reference stress or anxiety without specifying functional limitations.
- Consider performance issues a red flag that should be investigated. Evaluate whether the cited medical condition may explain those issues, and be prepared to engage in the interactive process to determine if a reasonable accommodation exists that will allow the employee to perform the essential functions of their job.
- Consult with employment law counsel before taking adverse action to ensure all steps considered comply with state and federal law and to develop appropriate strategies for handling complex cases.
When facing these types of situations, it’s best to approach them with both empathy and diligence, recognizing the need to support employees who genuinely require leave while also maintaining accountability and supporting business operations. The key is balancing legal compliance with consistent performance management, ensuring that protected leave does not become a stumbling block to the enforcement of legitimate workplace standards.