Can an employer put you on probation or a performance plan due to use of FMLA absences?

UPDATED: Aug 23, 2011

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Can an employer put you on probation or a performance plan due to use of FMLA absences?

My husband and I both have FMLA through our employers due to our son’s on-going multiple health issues. My employer has been great with having to deal with unexpected hospital stays and/or doctors appointments. My husband’s employer on the other hand has not. They are putting him on a “Performance Plan” and probation of employment due to his absences under FMLA. All absences we have provided documentation of hospitalizations etc. His employer keeps telling him it’s not fair he can just call in. Is this right?

Asked on August 23, 2011 Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Employers are not allowed to retaliate against employees for using FMLA leave, so if 1) the company is covered by FMLA (it seems to be) and 2) your husband meets the eligibility requirements (since they haven't challenged that, it seems he has), the only issue is 3) is he providing the proper notice and documentation? Assuming he is, they may not retaliate against him, and he may wish to contact the labor department about this. (Note: a company may engage in reasonable non-retaliatory adjustment--for example, if your husband's use of FMLA made it impossible for him to work a certain job or shift, it may be possible, for business reasons, to change his job or shift as long as he's still being paid the same and not otherwise punished; but that is different from what you describe.)

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