Employee on FMLA Is Missing Deadlines: What Can I Do?
An employee is out on FMLA leave. Deadlines are being missed. Projects are falling behind. Work they were supposed to complete before leaving is sitting unfinished. You’re frustrated and you’re wondering: can I hold them accountable for this?
This is one of the most legally sensitive situations in employment law, and getting it wrong carries real consequences. Here is how to think through it carefully.
FMLA Protections Are Real and Substantial
The Family and Medical Leave Act provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons. “Job-protected” means the employee has the right to return to the same or an equivalent position when their leave ends. It also means you generally cannot take adverse action against an employee because they took or are taking FMLA leave.
Interfering with an employee’s FMLA rights, or retaliating against them for exercising those rights, is a violation of federal law. The consequences include reinstatement, back pay, liquidated damages, and attorney’s fees. Courts take FMLA interference seriously.
What You Cannot Do
• You cannot discipline an employee for being absent during an approved FMLA leave period
• You cannot count FMLA leave as an absence under a no-fault attendance policy
• You cannot reassign the employee to a different position when they return as a consequence of taking FMLA
• You cannot hold work-product deadlines against an employee for work that was due during their FMLA leave period
• You cannot create a performance plan based primarily on performance issues that occurred during or because of FMLA leave
What You Can Do
FMLA does not create a blank check. There are legitimate actions you can take even when an employee is on or recently returned from FMLA leave.
Performance issues that existed before the leave
If the employee had documented performance problems before they went on FMLA, you can continue addressing those issues when they return. The key word is documented. If you have written warnings, PIPs, or coaching notes from before the leave, those remain valid. For guidance on structuring that process, see How to Write a Progressive Discipline Policy. What you cannot do is use the leave itself as an opportunity to build a case for termination.
Performance issues that are unrelated to the leave
If, when the employee returns, they engage in new conduct that is unrelated to their medical condition or leave, you can address that conduct through normal disciplinary processes. The connection to FMLA must be genuinely absent, not just technically separate.
Work that was due before the leave began
If an employee had a work product due before their leave started and did not complete it, that may be addressable. But be careful: if the FMLA leave was for a condition that developed suddenly and affected their ability to complete the work before leaving, the connection is not as clean as it might appear.
The Documentation Question
Before taking any action related to an employee on or recently returned from FMLA, ask yourself: could this action be characterized as retaliation for taking FMLA leave? If there is any reasonable argument that the timing or the basis for action is connected to the leave, you have a problem.
The safest path: consult with HR or employment counsel before taking any adverse action against an employee who is on FMLA or who has recently returned. Document your reasoning carefully and ensure the basis for any action is clearly connected to conduct or performance that is distinct from the leave.
Managing the Operational Reality
While you cannot discipline an employee for FMLA absence, you do have to manage the operational impact. That means:
• Redistributing the employee’s work to other team members or a temporary hire during the leave
• Adjusting project timelines and communicating those adjustments to stakeholders
• Not placing the burden of coverage failure on the returning employee
For a structured approach to bringing someone back into the workflow, see New Employee Onboarding Checklist. When the employee returns, have a re-entry conversation that covers what changed while they were out, what their priorities are now, and what support they need to get back up to speed. Do not make the first conversation about what went wrong while they were away.
The Bottom Line
FMLA leave is legally protected. You cannot use it as a basis for discipline or termination. But you can continue to address pre-existing, documented performance issues that are genuinely unrelated to the leave. The key is documentation, consistency, and a very clear separation between what is connected to the leave and what is not. When in doubt, get HR or legal guidance before acting.
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