A federal appeals court in Donnelly v. Greenburgh Central School District No. 7, No. 11-2448 (2d Cir., August 10, 2012), is permitting a teacher to proceed with his FMLA retaliation claim because the school district referred, in part, to his FMLA absences to lower his overall evaluation. The lower evaluation was then used to deny the teacher tenure.
It is important to remember that courts treat FMLA absences as “off-base” for any adverse consequences. Perfect attendance awards cannot be denied to employees who were absent because of FMLA leave. Employees who exceed the 12 weeks can certainly be replaced or their positions eliminated, but employees who attempt to return to work after the expiration of their leave and before they are replaced may be able to claim retaliation if they are not returned to work.
In sum, FMLA leave should not form the basis for any evaluations of work performance. If it does, any subsequent actions against the employee based on that evaluation could be viewed as illegal retaliation.