Can FMLA Absences Affect Performance Evaluations?

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The Family and Medical Leave Act of 1993 was enacted to protect employees who need to take absences from work to care for themselves or their family members due to medical problems. This law was amended in 2008 to allow extended leave for the care of service members. Retaliation of any type is strictly prohibited. Employers who use FMLA absences to judge an employee's performance face legal sanction from the Department of Labor or in civil court.

Leave Requirements

Not all leave falls under the auspices of the FMLA, even if that leave is taken for medical reasons. If the business is governed by the provisions of the FMLA, the employee must have worked for the company for at least 12 months and have completed 1,250 hours of work within the previous 12 months to be considered eligible for leave. Leave may be granted to allow employees to care for themselves, their spouse, their children or their parents. Other family relationships are not covered by this legislation. Leave is considered unpaid and may be requested for up to 12 weeks per year. Military family members are eligible for 26 weeks of leave annually.

Protection of Position

While an employee is away from work under the FMLA, his position with the company is secure. An employer may not eliminate his position in the company, but the exact job he held may not be available at the time of his return. For example, a customer service representative who works in a certain store may return to work to find that he now works in a different department or in a different store. It is at the employer's discretion to shift personnel as needed as long as the employee in question returns to work with the same job or a job comparable to the job he was doing when he went on leave.

Benefit Protection

During the leave, an employer may not cancel the benefits an employee is receiving. This includes any health, dental, life or supplemental insurance policies; retirement programs; or employee assistance programs. Employees are responsible for paying any premiums that may be due during their leave to ensure no lapses occur. Failure to make arrangements for payments may result in the termination of coverage through no fault of the employer.


The Family and Medical Leave Act is governed by the Wage and Hour Division of the U.S. Department of Labor. Any complaints, questions or concerns that cannot be resolved through the employer should be directed to the nearest state office. Employees may seek legal action if they feel the employer has violated FMLA by downgrading them on a performance evaluation because of an eligible absence.

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