Oh, no! Tell me a supervisor didn’t write THAT on an employee’s PIP.

If you haven’t done FMLA training for your supervisors, hopefully, this post will motivate you to get some on the calendar.

The case I want to share with you today involves a lab tech with several disabilities. As they worsened, she was often late to work due to her disabilities. The plaintiff alleged that she became eligible for FMLA leave on October 9, 2018. In its answer to the plaintiff’s federal court complaint, the defendant admitted that it approved her FMLA request on October 9.

(Later, the defendant took the position that it approved the plaintiff’s leave request on November 6, 2018, retroactive to October 24, 2018. You’ll see why this is important in a bit.)

On October 9, 2018, the plaintiff’s supervisor issued her a Performance Improvement Plan (“PIP”) to help her, among other things, report on time to her shifts in compliance with the company’s attendance policy. The plaintiff subsequently received a verbal and written disciplinary warning for arriving late to work on the following dates: October 12, 15-18, 22, 26, 29, 30, November 2, 2018, and January 8-9, 2019.

But check this out.

The plaintiff alleged that her supervisor wrote on the PIP that “FMLA [leave is] not to be applied to Tardy occurrences.”

The FMLA makes it unlawful for employers to interfere with, restrain, or deny the exercise or attempt to exercise FMLA rights. This includes discouraging an employee from using such leave. It’s called FMLA interference.

The plaintiff claimed that her supervisor’s comment discouraged her from seeking leave for her subsequent tardy arrivals and that this interference prejudiced her because she received verbal and written disciplinary actions for her late arrivals in October, November, and January.

The employer claimed that the plaintiff was not entitled to leave until her FMLA intermittent leave was approved on November 6, 2018. Therefore it had no choice but to consider her tardy arrivals before then as violations of its attendance policy. But, remember, the employer admitted in its answer to the plaintiff’s complaint that her FMLA request “was approved beginning on October 9, 2018.”

Whoops!

Consequently, the appellate court remanded the FMLA interference claim to allow the district court to consider whether the supervisor’s comment would have discouraged a reasonable person from taking FMLA leave on the additional days she was marked tardy after her FMLA leave was approved.

Employers, please instruct your managers that comments about FMLA leave do not belong on performance improvement plans.

Ever.