FMLA Does Not Excuse Poor Performance

By Jon Hyman

Jun. 30, 2016


Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

Debbie Checa, a manager at the Drexel University College of Medicine, suffered from carpal tunnel syndrome. She sought, and was provided, a 12-week FMLA leave of absence for corrective surgery (which Drexel agreed to extend further after Checa’s mother died).

On her first day back at work, Checa claimed that her boss ambushed her during her “first day back” meeting with a list of incomplete tasks she had allegedly agreed to complete before taking leave. In response, Checa quit and (surprise) sued Drexel for FMLA retaliation. She claimed her boss orchestrated the “first day back” meeting as a “planned attack.”

The court dismissed Checa’s retaliation claim, concluding that the “first day back” meeting was not an adverse employment action.

The “first day back” meeting, and the issues discussed at the meeting, do not qualify as a materially adverse employment action. Under Checa’s reasoning, an employer should forget about pre-leave performance deficiencies or deliver them in a more courteous manner. But our workplace discrimination laws are not designed to remedy everyday slights or “trivial harms.” We see no basis for extending Congress’ remedial mandate to this type of employer conduct.

What a nice, common-sense result. While Tilly reaches the correct result that an employer cannot hold an employee accountable for work not completed during an FMLA leave, the result in Checa is equally correct. The FMLA is not a personnel-file eraser. One does return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

What’s New at

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog


Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog


New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog


Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law