Q&A: May need to adjust workload during FMLA leave
Question: We granted intermittent leave to a full-time employee under the federal Family and Medical Leave Act (FMLA). They normally work five days a week and expect to miss work about one day a week for the next six months. The employee says they can’t meet their current work obligations given their anticipated time off. Do we have to reduce their workload?
Answer: Yes, if it isn’t reasonable to expect them to shoulder a full-time workload while working only 80 percent of their normal hours during this time period. It depends on their workload – for example, if projects typically slow down around this time of year then you might not need to make any adjustments. But if this is a busy time of year when you need all hands on deck, you will probably have to take some projects off of the employee’s plate.
If this employee is exempt from overtime, it might be tempting to expect them to make up the time after hours or on weekends. If you take such an approach, you’re not actually providing FMLA leave; you’re merely adjusting the employee’s work schedule.
Consequences of Denying FMLA Leave Requests
Denying the employee’s request may create the basis for an FMLA interference claim. The company can be held liable for FMLA interference if it creates a situation where an employee cannot actually use the FMLA leave they’ve been granted. If the company tries to assert that an employee was disciplined or terminated for failing to meet legitimate performance standards, the employee can respond that they could have met the expectations if the company hadn’t refused to make workload adjustments to account for legally protected leave.
Performance Standards and Adjustments for Protected Leave
You don’t have to lower performance standards during work time for an employee who takes intermittent protected leave, nor is this employee entitled to any greater job protection than anyone else, but you may need to adjust expectations to account for times that they’re unable to work. All employees should be given the tools, training, and support necessary to meet the performance standards you’ve set for them. Accordingly, supervisors should arrange for adequate coverage and make the necessary workload adjustments to ensure the employee has the same opportunity as other employees to meet legitimate expectations while actively working.
Supervisor Responsibilities When Employees Take Protected Leave
The fact is, when an employee takes protected leave under federal or state law, other employees may have to pick up the slack and cover for them while they’re out. It’s the responsibility of the supervisor to plan in advance, monitor workloads, and assign work in a manner that allows all employees to succeed at their jobs, regardless of whether they use protected leave. Supervisors also need to protect confidentiality and ensure that no one retaliates against an employee who takes protected leave. For more information about the FMLA, see our Legal Guide, At a Glance: Family and Medical Leave Act (FMLA), or contact your assigned Vigilant Law Group employment attorney.
