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I’m new to Family and Medical Leave Act management. Employees can have up to 12 weeks unpaid, job-protected leave under FMLA, and I have an employee, Marge, who is approaching her 12 weeks out due to anxiety and depression. Before leaving, she was written up for her poor performance, and she said it was due to her condition and being old. Her words — not mine. She was also told she would be going on a performance improvement plan. However, before that happened, she left on FMLA. She did see the PIP but refused to sign it as she didn’t agree with it. She was due to return a month ago, but after follow-up with her doctor, she is now scheduled to return at the end of this month. This date goes beyond her 12 weeks. I know the Americans with Disabilities Act comes into play because of her condition. But what are our options? Could we separate ways? 

There are three issues here: Marge’s performance, Marge’s FMLA leave of absence that is going over the 12-week limit and Marge’s eligibility for ADA.

They all overlap, and each one is important.

The easiest is FMLA. FMLA has a 12-week limit. There isn’t any pushing that limit, and it will be done before Marge’s doctor says she can return to work. It’s very important that you let Marge know that her leave is ending on a certain date. FMLA has this tricky little thing: If you tell someone they are eligible for leave under the act, they are eligible. So if you continue to treat Marge’s leave of absence like medical leave, Marge may argue that she believed you’d extended her leave and is entitled to the leave.

So make it clear that FMLA is over, but also make it clear that you would like to begin the interactive process for ADA. 

While both FMLA and ADA allow support for employees, including leaves of absence, there is one big difference: ADA has to be reasonable. The Family Medical Leave Act does not. So even though you don’t have enough people to cover Marge while she’s gone, the law doesn’t care. ADA does. The accommodation you make for an employee must be reasonable.

What is reasonable will vary from business to business and job to job. Extended leaves of absence can be reasonable in some situations but not in all. So this is something you will need to explore. And exploring this means meeting with Marge and going through the interactive process. This is a back-and-forth between the employee and the company. The company doesn’t have to accept Marge’s request for continued time off as it does for FMLA. 

Now to be clear, it’s very likely that an additional two weeks of absence would be considered reasonable for Marge and really anyone. I think a court would say, “You’ve survived 12 weeks without Marge; what’s two weeks more?”

The real problem is that there is a point in which an extended leave of absence is unreasonable, and knowing that day is tricky. If Marge’s doctor says she can’t come back to work, I would bring in your employment attorney to help with the interactive process.

If Marge does come back, you may still need support. The ADA supports that as well. AskJan.org is a great starting space for finding ideas for supporting people with disabilities. Go through that interactive process with Marge to find solutions.

And that brings us to the performance issues. ADA and FMLA don’t make up for poor performance. They aren’t get-out-of-PIP-free cards. You can’t hold FMLA or ADA against an employee, but you can still hold them accountable for their work when they are there. 

So the PIP is the first thing you’ll have to address with Marge when she returns. It will probably need updating as she has been out for more than three months.

But here’s the important thing about PIPs. The employee doesn’t have to agree to them. Managers have the discretion to lay them out. Yes, it should only focus on her job, but no, it’s not interactive like an ADA accommodation. The manager says you need to do X. 

The idea of a PIP is a clear list of things the employee needs to accomplish in the next 30, 60 and 90 days. They should be measurable. So don’t write, “Have a better attitude.” That’s not measurable. Write “Participate in team meetings” or “respond to emails within two business hours.” These things are measurable.

If Marge refuses to sign again, this is not a big deal. Explain that her signature simply acknowledges that she is aware of the PIP and aware of the consequences of not fulfilling it. If she still refuses to sign, then you get a witness, and you and the witness both sign that you presented Marge the PIP and explained it to her but she refused to sign. That’s it.

Hopefully, Marge will return to work, and you can provide her reasonable accommodations to succeed. If not, before terminating her, please consult with your employment attorney to ensure you comply with the law.  

Send questions to evilhrlady@gmail.com.

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