Yes, but with critical legal constraints. While taking protected leave cannot be used as a negative factor under federal law, employers may still document pre-existing conduct or non-leave performance gaps. Explore 29 C.F.R. § 825.220(c) rules, quota proration standards, and defensible HR documentation scripts.
Under 29 C.F.R. § 825.220(c), employers are strictly prohibited from using FMLA leave as a "negative factor" in any employment decision. Frontline managers who discipline returning workers without adjusting performance quotas face mandatory liquidated (double) damages under 29 U.S.C. § 2617.
You may document legitimate conduct or non-leave performance deficiencies, provided you can demonstrate that the exact same action would have been taken if the employee had never requested or taken FMLA leave. However, you cannot discipline for absences, cite team disruption caused by leave, or hold the employee to unprorated production quotas.
In federal court, emails or write-ups referencing "unreliable schedule", "strain on team coverage", or "frequent absences" are classified as direct admissions of retaliatory animus. Even if the underlying work quality was poor, linking discipline to leave guarantees denial of employer summary judgment.
"Because your FMLA absences keep disrupting the shipping department schedule, you have failed to hit your monthly quota and are being placed on a final performance warning."
"We are documenting performance expectations based strictly on quality output during your active working hours. All targets have been prorated to account for your approved leave schedule, and we will coordinate with HR on any leave or accommodation adjustments."
Review the strict boundaries established by federal courts and Department of Labor enforcement rulings.
| Disciplinary Category | ❌ Prohibited (Retaliation Risk) | ✅ Permissible (Legally Defensible) | Legal Authority |
|---|---|---|---|
| Attendance & Tardy Points | Assigning points or warnings under a no-fault attendance policy for FMLA-certified absences or tardiness. | Disciplining for unexcused absences occurring before/after FMLA approval, or for failing to follow customary call-in rules without good cause. | 29 C.F.R. § 825.220(c) |
| Output & Production Quotas | Evaluating an employee against annual or monthly sales/production quotas that were not prorated for leave duration. | Holding an employee to the full quality rate and prorated volume rate during their active, on-duty working hours. | Pagel v. TIN Inc., 695 F.3d 622 |
| Timing & Documentation | Issuing a warning within 1–30 days of leave notice when no pre-leave performance documentation exists in the personnel file. | Executing progressive discipline where written documentation and formal coaching commenced well before the leave request arose. | Bachelder v. America West Airlines |
| Manager Commentary | Referencing 'unreliability', 'team burden', 'scheduling headaches', or 'absenteeism affecting department morale'. | Focusing exclusively on tangible work product errors, client complaints, or demonstrable policy breaches with verifiable logs. | 29 U.S.C. § 2615(a)(1) |
Before signing or delivering any disciplinary action to an employee on or returning from FMLA, HR managers must verify these 5 checkpoints.
Verify that zero minutes of approved FMLA time are counted in any point system, rolling tardy tally, or attendance warning.
Under Pagel v. TIN Inc., sales and production targets must be mathematically reduced to match the employee's active on-duty time.
Audit the personnel file to confirm written performance concerns were already documented prior to the employee requesting leave.
Confirm that peers who did NOT take leave received identical discipline for the exact same level of performance deficiency.
Remove all words referencing 'coverage', 'team morale', 'inconsistency', or 'medical appointments' from the final document.
Assess the liability level of your planned disciplinary action before delivering it to an employee.
Answer 4 core questions to evaluate whether your planned communication or documentation would withstand an EEOC investigation or federal court review.
1. Has the employee taken medical leave, requested an accommodation, or raised a workplace concern in the last 90 days?
Federal courts apply 'temporal proximity' (Clark County v. Breeden) where adverse actions within 1-3 months of protected activity trigger an inference of retaliatory intent.
2. Does your proposed draft or talking points mention 'absences', 'scheduling disruption', or 'attitude since the complaint'?
Under 29 C.F.R. § 825.220(c) and EEOC guidance, linking discipline to protected leave disruption constitutes prima facie direct evidence of unlawful interference.
3. Do you have documentation proving that employees with identical performance who did NOT take leave received the same warning?
Under the McDonnell Douglas burden-shifting framework, failure to discipline non-leave-taking peers for identical metrics proves unlawful pretext.
4. Has an HR compliance specialist or employment counsel formally reviewed and approved the specific wording?
Cat's Paw doctrine (Staub v. Proctor Hospital) holds companies liable when decision-makers rely on reviews tainted by a frontline supervisor's animus.
Use these legally vetted templates to communicate performance requirements while eliminating retaliation exposure.
*Note: Replace all bracketed items such as [Employee Name] or [Objective Metric] before transmitting. Do not alter the protective phrasing structure without HR compliance review.
These binding federal circuit rulings define exactly how judges and juries evaluate disciplinary write-ups under FMLA.
Federal Ruling: The Seventh Circuit held that when an employer fails to adjust or prorate sales quotas to reflect the time an employee was away on approved FMLA leave, holding the employee accountable for unadjusted metrics constitutes unlawful interference under 29 C.F.R. § 825.220(c).
Federal Ruling: The court confirmed that an employer can be held liable for FMLA interference if a manager's verbal hostility or discouraging remarks deter an employee from exercising leave rights, even if the leave is not formally denied.
Federal Ruling: The Eighth Circuit affirmed summary judgment for the employer, finding that an employer may discipline an employee on intermittent FMLA for failing to comply with standard call-in procedures, provided the rule is applied equally to all workers.
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Common legal edge cases encountered by HR leaders and department supervisors.
Generally, no. Issuing a disciplinary write-up to an employee while they are physically out on medical leave creates extreme legal risk under 29 U.S.C. § 2615. Courts treat this as direct evidence of interference and retaliatory timing. Unless the company discovers severe gross misconduct (such as theft or embezzlement) during an independent audit that would have resulted in immediate termination regardless of leave, all non-urgent performance reviews must be paused until the employee returns.
Under the legal standard established in Pagel v. TIN Inc., quotas must be adjusted in exact mathematical proportion to the employee's active working hours. For example, if a salesperson has a quarterly quota of $300,000 across 12 working weeks ($25,000/week) and takes 4 weeks of approved FMLA leave, their adjusted quarterly quota must be reduced to $200,000 for the remaining 8 weeks on duty. Penalizing them for missing the unprorated $300,000 target constitutes unlawful FMLA interference.
You cannot write up an employee for tardiness or absences that are certified and designated under their approved intermittent FMLA plan. However, you can enforce reasonable, customary call-in policies (such as requiring notice 1 hour before shift start to the dedicated call-in hotline), provided that identical standards are applied to non-FMLA absences. Any warning must cite only the failure to follow procedure, never the absence itself.
Do not stop the meeting in panic, but do not dismiss the request. Neutrality is key. Acknowledge the request calmly: 'Thank you for letting us know; we will connect you immediately with HR to provide FMLA paperwork (Form WH-381).' Then proceed with the pre-scheduled disciplinary discussion, ensuring the written record reflects that the performance deficiency was identified, investigated, and scheduled prior to the employee's leave disclosure.
Under 29 U.S.C. § 2617, prevailing employees can recover back pay (lost wages and benefits), front pay, reasonable attorney's fees, and mandatory liquidated damages equal to the sum of back pay plus interest, unless the employer proves it acted in good faith with reasonable grounds. Individual managers and HR supervisors can also be held individually liable in many federal circuits.
Strengthen your documentation and progressive discipline records with these verified compliance resources.
Learn which innocent phrases trigger immediate retaliation charges and how to rewrite manager communications safely.
Explore 7 verified federal court rulings where managers improperly wrote up or terminated employees taking leave.
Audit your disciplinary memo across 12 federal and state legal risk indicators before holding a disciplinary meeting.
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Use the checker to identify FMLA, ADA, EEOC, attendance, and discipline phrasing that may need HR review.
Chief HR Compliance Advisor & Labor Counsel
Sarah Jenkins has spent over 16 years advising Fortune 500 executives, HR vice presidents, and legal teams on avoiding high-exposure labor claims under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act. She earned her Juris Doctor from Georgetown University Law Center and maintains Senior Professional in Human Resources (SPHR) certification.