Managing Performance Issues While an Employee Is On Leave or Accommodation

Performance Management

By: Kim Adamson

Employers are often reluctant to address performance concerns when an employee is taking protected leave or working under an approved accommodation. While that hesitation is understandable, protected leave and workplace accommodations should not prevent employers from managing employee performance or enforcing legitimate workplace expectations.

Employees may not be disciplined, receive negative performance evaluations, or be retaliated against because they take protected leave under laws such as the Family and Medical Leave Act (FMLA) or Colorado’s Family and Medical Leave Insurance (FAMLI) program. Employees also cannot be penalized for using approved workplace accommodations, including leave, that are protected by the Americans with Disabilities Act (ADA). However, employers are not required to overlook legitimate performance issues that are unrelated to an employee’s leave or accommodation. The Equal Employment Opportunity Commission (EEOC) generally recognizes that employers may continue to manage performance expectations and hold employees accountable to established workplace standards and essential job functions, provided they do not base employment decisions on the employee’s use of protected leave or workplace accommodation.

Employees who are using protected leave or a workplace accommodation may still receive coaching, corrective action, a performance improvement plan (PIP), or, in appropriate circumstances, termination. Performance evaluations and disciplinary decisions should focus on the employee’s work during periods when they were available and expected to perform their job duties. Examples of issues that may still warrant performance management include missed deadlines during periods when the employee was actively working, recurring quality concerns, failure to follow established procedures, or workplace conduct issues unrelated to the employee’s medical condition or approved leave.

What matters is the reason for the employment decision. Employers should be prepared to demonstrate that any corrective action is based on legitimate performance or conduct concerns rather than the employee’s use of protected leave or an accommodation.

Suggested Guidelines:

  • Keep leave and accommodation records separate from performance documentation.
  • Address performance issues when they arise. Timely feedback and corrective action promote consistency, demonstrate fairness, and help managers and HR staff build confidence in the overall performance management process.
  • Evaluate performance based on objective, job-related standards, and measurable factors, such as productivity, quality, accuracy, compliance with established procedures, and attendance expectations during scheduled work time. Apply performance standards consistently for all employees.
  • Document performance concerns with detailed, objective examples, including dates and business impact, while explicitly noting that leave or accommodation are not the cause. This helps ensure documentation supports lawful, fair decisions and avoids bias.
  • During coaching, corrective action, or termination discussions, clearly explain the specific areas of concern, the basis for any corrective action, and the performance expectations for improvement. Clear communication reinforces fairness and reduces misunderstandings.
  • Managers and HR staff should be trained to evaluate employees using consistent performance standards and procedures, regardless of leave or accommodation status, to reduce bias and legal risk while maintaining fairness and trust.
  • HR can provide valuable guidance to managers by reviewing documentation, assessing whether the facts support corrective action, and helping ensure that employment decisions are based on legitimate performance or conduct concerns rather than an employee’s use of leave, intermittent leave, or a workplace accommodation.
  • Review job descriptions regularly to confirm that essential job duties, in-person responsibilities, and performance expectations are accurately described. This is important should the employer have to defend a performance or termination decision.

Employers can reduce risk by managing performance issues promptly, documenting issues consistently, and applying the same standards to all employees, regardless of an employee’s leave or accommodation status. The key is ensuring that employment decisions are based on legitimate performance or conduct issues, and not on the employee’s use of protected leave or an accommodation. By maintaining open communication, setting clear expectations, and documenting performance discussions, employers can create a culture of accountability and fairness that supports employee success and minimizes the likelihood that employment decisions come as a surprise to the employee.

 

Resources:

Recent Posts

Archives