The Trend Employees Are Using on PIPs…And How Employers Can Respond

Here’s a scenario that’s becoming increasingly common in HR departments across the country: An employee is struggling with performance issues. After working with them and providing coaching, the employer decides to put them on a 60-day performance improvement plan (PIP). It’s a reasonable step – giving them a clear path to get back on track.

Then, almost like clockwork, the employee requests medical leave under the Family and Medical Leave Act (FMLA). The reason? In many instances, it’s for stress, anxiety, or other mental health conditions that they claim were caused or exacerbated by the workplace situation.

This trend puts employers in what feels like an impossible position, but the reality is that employers have more options than they realize – and employers shouldn’t feel obligated to simply roll over every time an employee makes an FMLA request at a convenient time.

Let’s be clear: employees don’t get to use FMLA as a shield against legitimate performance management. While employers must comply with FMLA requirements, employers also have the right to run their business and maintain performance standards. The key is knowing how to navigate this situation properly.

First, consider simply granting the leave if the medical certification is adequate. This keeps the business on safe legal ground. In doing so, the performance issues don’t just disappear. When the employee returns from the FMLA leave, they’re entitled to the same or equivalent position – not a clean slate on performance expectations. Employers can resume or restart the performance improvement process (sometimes allowing for a “ramp up” period), and employers should document that the leave didn’t cure the underlying performance problems if they persist.

Second, if the medical certification seems vague or questionable – and many stress-related certifications may be light on specifics – employers have the right to seek clarification or a second opinion. Employers shouldn’t be intimidated into accepting certifications that simply state “work-related stress” without explaining actual functional limitations or restrictions. FMLA (and its state counterpart) allows employers to request additional information, and employers should use that right when appropriate.

Third, to be fair to the employee, examine whether the alleged medical condition actually explains the performance issues. In rare instances, what looks like poor performance might genuinely be symptoms of a medical condition. If it is related to a disability, be willing to engage in the accommodation process under the ADA, but don’t assume that every performance problem is really a hidden disability.

Fourth, talk with employment law counsel. There are other measures that employers can consider that provide counter-measures to these types of requests. And because of the cat-and-mouse game that sometimes happens with these requests, not every employer strategy should be publicized ahead of time.

Throughout this process, document everything meticulously. It’s particularly important to demonstrate that the performance concerns pre-dated any FMLA request, and continue documenting those issues objectively. Ultimately, an employee’s FMLA request should not stop employers from managing performance or holding the employee accountable to the same standards as everyone else.

Remember that FMLA provides job protection, not performance protection. An employee can’t use medical leave to avoid consequences for legitimate performance issues that existed before the leave. If someone was failing to meet standards before their leave, returning from leave doesn’t automatically reset their performance record.

The goal here isn’t to be unsympathetic to employees who may genuinely need medical leave. But it’s also not to let employees manipulate the system to avoid accountability. Employers can and should approach these situations with appropriate skepticism while still following the law.