Can my employer evaluate my performance while I am out on FMLA?

UPDATED: Sep 30, 2022

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Can my employer evaluate my performance while I am out on FMLA?

I went out on leave for 2 weeks beginning February 22nd to March 8th of 2016, at the direction of my physician, due to a traumatic event that occurred earlier in February. When I returned to work I was put in test case/training mode and removed from production until April 1st of 2016 to get me back accustomed to our process. I was evaluated negatively for the months of February and March, especially March which in turn was my lowest rating for the year end review. My FMLA leave was never taken into consideration for

either of these months. I have gone back in forth with management and HR trying to get these 2 months removed from my evaluation. And to be rated for 10 months vs 12 months. I am not getting direct answers and nothing has been changed in regards to the ratings in these months. These 2 months have negatively impacted my overall 2016 performance and with these 2 months being evaluated I am under the

department standard. Without these 2 months I am above department standards. Do I have a leg to stand on?

Asked on May 24, 2017 under Employment Labor Law, North Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

First, if there is no concrete impact on you (e.g. loss or reduction of pay or bonus, being denied a promotion or being demoted, being suspended or terminated, etc.) there is no point in looking at filng a claim or taking legal action. The law is designed and intended to provide compensation for quantifiable losses; without a loss to get compensation for, there really is nothing the law can or will do.
Second, it would be illegal to give you a bad evaluation in retaliation for your punish you for that. If this is what happened, then you may have a legal claim to bring to the department of labor or to file suit over--though again, there must effectively be some quantifiable loss which you suffered. 
But you can be negatively evaluated during a leave period for reasons unrelated to leave--the fact that you were on leave does not excuse poor performance, difficulting mastering a task or process, or even lower during the period of time right before and/or after you were on leave, for example. All you are protected against is against suffering retaliation for being on leave.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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