What Does FMLA Have to Do With a Performance Review??

You fired your employee 2 months after returning from FMLA leave… because of performance. Really?

Did the performance standards you set take the leave into consideration? No? You may have a problem. Read on to learn more…

The 7th Circuit Court of Appeals held that failure to factor FMLA leave in an employee’s performance review was a problem. The case is Wayland v OSF Healthcare System.  Here, in a nutshell, is what went down:

OSF’s training manager took FMLA leave, most of it intermittent starting in October 2018. The court’s opinion does not shed light on the reasons for the leave. Since they are not relevant to the issue at hand, we can assume that the court saw no reason to reference them.

OSF is a multi-state not-for-profit healthcare organization that operates a medical group hospital and healthcare facilities in IL and MI. It underwent significant expansion between 2017 and 2018, resulting in more work and shorter deadlines for Ms. Wayland and her team. Ms. Wayland received positive performance reviews in 2017 and 2018.

Ms. Wayland took up to 2 days a week of intermittent leave. During her approved leave, OSF allegedly told Ms Wayland and her team that they had “no choice” but to meet OSF’s accelerated goals. Managing her staff, meeting all the goals and deadlines that applied before she took leave and keeping up with an expansion-related increased workload was a struggle at best.

OSF put her on a Performance Improvement Plan one month after her FMLA leave ended and fired her about one month later.

Ms. Wayland sued, arguing OSF’s failure to take her FMLA leave into consideration when setting its performance goals and deadlines worked to penalize her for taking FMLA leave.

The US District Court granted summary judgment to OSF, reasoning that it “justifiably” fired her for “not meeting its expectations”.

The 7th Circuit reversed. It found a geniune factual dispute as to how much time Ms. Wayland was out. She alleged that she had taken off 6 weeks (It does not seem readily apparent whether that was only her continuous leave or whether the 6 weeks also included her intermittent leave.) She also alleged that during her intermittent leave, she was only available to work 80% of a full workweek. OSF alleges she only took 10 days’ leave.

The 7th Circuit found the question as to how much leave Ms. Wayland took to be a dispute as to a material issue of fact, thereby precluding summary judgment. If, as she alleged she was only available to work 80% of a full workweek and the reason for the “shortfall” in her performance was due to her legally protected FMLA leave, then OSF’s failure to adjust its expectations accordingly could be an FMLA violation. If she only took 10 days of leave, then she may be lacking sufficient proof that OSF’s failure to adjust its expectations based on her leave really made any material difference in her performance.

OK, so there are four obvious, case-specific takeaways here:

1. Adjust expectations for employees on FMLA and, in this case, intermittent FMLA.
2. Document the amount of leave time your employees take, making sure the documentation is cleare nad accurate;
3. Before you decide to terminate an employee  for performance reasons, review their entire performance history. In the case of an employee returning from protected leave, pay particular attention to their performance prior to their leave. In this case, prior to her leave, Ms. Wayland’s performance history was positive. That alone is a red flag.
4. Before you fire an employee returning from leave, speak with your friendly local employment counsel!

Now for the Zooming Out piece, (if you’ve read any of my previous posts, you know this is what I do): First, the employer is a healthcare organization. So the irony of such an employer effectively attempting an end run around an employee family medical leave law shouldn’t be lost on any of us. I’ll come back to that.

Second, not only was this employer’s failure short-sighted, not only did it lead to a very avoidable lawsuit (and an expensive lesson), but it sent a message it shouldn’t have wanted to send to its employees: that its employer doesn’t value them, isn’t looking out for them and sees them as a liability or even a necessary evil.

Lawsuits, high turnover and unionization commonly result from these types of employer practices.

So does brand damage. How can OSF claim to properly take care of patients if it doesn’t value its own employees’ health?

I think I’ve made my point…