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

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