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FMLA & Performance Evaluations: Can Using FMLA Count Against You?

written by: Sidharth Thakur•edited by: Michele McDonough•updated: 9/30/2010

An employer can not discriminate against an employee at the time of performance evaluation, simply for availing FMLA-qualified leave. However, that leave must be in accordance with the guidelines of the Family and Medical Leave Act.

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    FMLA Leave

    Most employees, who have taken or propose to take FMLA leave, have a lot of uncertainty and doubt surrounding whether taking FMLA leave will have an adverse effect on their performance evaluations. As per FMLA, performance evaluations should never bear the brunt of any leaves taken by an employee in tandem with the provisions of this act. Employment laws forbid the employer from accounting FMLA leaves as a negative factor, at the time of taking employment related decisions like performance evaluations, promotions, termination or layoffs, for all eligible employees. But, it’s important that the employee has not breached any FMLA leave regulations and has tendered all supportive documents for the claim.

    However, at the same time as it protects the employees, the legislation permits the employer to mark down an employee during performance evaluations, irrespective of the employee’s FMLA leave status, provided the employer has a legitimate and non-discriminatory performance-related reason, for taking such action.

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    Right to Reinstatement and Other Benefits

    All employees who assert their claim to FMLA leave in accordance with the statutes, have the right to be reinstated at the same or an equivalent designation, upon returning from the leave. This, of course is subject to the condition that the leave was taken for qualifying medical circumstances - relating to the ill health of spouse or parents of the employee, for childbirth or child care, or for the employee's own health reasons.

    Irrespective of whether the leave is taken for the employee's own health reasons or for caring for a family member, as long as the leave has been taken in conformity with the FMLA, the employee is fully entitled to all employment benefits like annual raises and medical insurance. Taking FMLA can also not be a reason for discrimination during performance evaluations, annual appraisals and promotions.

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    When Can FMLA Leave Adversely Affect Performance Evaluations?

    Taking FMLA can have a negative effect on an employee’s performance evaluation if:

    1. The employee fails to qualify for all the basic leave eligibility requirements such as minimum term of employment and minimum work hours over the past one year, as specified in FMLA. Preformance evaluations can suffer in such cases.
    2. The employee takes leave in excess of 12 weeks over a 12 month period, which is more than what is permitted under the Family and Medical Leave Act.
    3. The employee does not notify the employer in-advance about taking leave, as required for certain types of FMLA covered leave. Also, it is important that upon receiving the leave notice the employer clearly designates the leave as FMLA leave.
    4. The employee does not tender all the required documents that support his claim for the leave.
    5. The employee takes leave for personal medical reasons, but the illness does not fit into the FMLA's list of medical problems, for which leave can be granted. Employees can take FMLA leave for themselves, only when they have a serious medical condition which incapacitates them and makes them unable to perform their job properly.

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    In all these above mentioned cases, the employer can use FMLA leave as a negative factor at the time of conducting performance evaluations or deciding on other employment related benefits. However, in general, when an employee is fully eligible for the leave and takes leave completely in compliance with the regulations, the employer cannot count FMLA leave against the employee, during any type of evaluation.