When an employee is prevented from meeting a performance objective due to his FMLA leave, the employer is required to adjust the performance requirement to take into account the employee’s FMLA-covered absences. See, e.g., Martin v. Brevard County Public Schools, 543 F.3d 1261, 1267-68 (11th Cir. 2008) (reversing summary judgment to employer where plaintiff was terminated for failure to complete the final three-plus weeks of an improvement plan as a result of being on FMLA leave); Pagel v. Tin Inc., 695 F.3d 622, 629 (7th Cir. 2012) (“[The FMLA] require[s] that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.”); Wojan v. Alcon Labs., Inc., No. 07-11544, 2008 WL 4279365, at *5-6 (E.D. Mich. Sept. 15, 2008) (denying summary judgment for employer on FMLA interference claim where jury could conclude employer used former sales representative’s FMLA leave against her by failing to adjust her sales quotas and performance scores to account for her protected leave and then terminating her for failing to meet that unadjusted standard).
What does all that legalese mean? It means that if you are out on FMLA and the employer somehow uses that against you, like by still requiring the same quota of sales for those days you were out even though the employer knows you were, say, in the hospital recovering from surgery, and then the employer fires you because you did not meet that quota, you have an FMLA claim. Any time there is a retaliation claim related to some other law you may also have a whistleblower claim but it doesn’t get you anymore in the long run. More on multiple claim lawsuits in a future post.