One of the most difficult situations employers face is when an employee who is struggling with performance issues requests a protected leave of absence. What may have been a straightforward performance management issue suddenly becomes intertwined with disability accommodation obligations, job restoration rights, and potential retaliation claims. This tension has drawn national attention recently, and is showing up in Washington workplaces more often and with more complexity than ever before. Recent client matters have highlighted a reality that many Washington employers are discovering firsthand: it is often not the leave itself that creates legal risk, but rather the timing, documentation, and decisions that surround it.

Washington’s Expanding PFML Job Protections

Washington’s Paid Family and Medical Leave (PFML) program continues to expand. Beginning in 2026, job protection rights apply to employers with 25 or more employees, provided the employee has worked for the employer for at least 180 days. The Legislature has already scheduled additional expansions. In 2027, the threshold drops to employers with 15 or more employees, and in 2028 it drops again to employers with 8 or more employees.

This means many businesses that previously viewed PFML primarily as a wage replacement program must now grapple with restoration rights and reinstatement obligations as well. Eligible employees generally must be returned to the same or an equivalent position upon conclusion of protected leave, and employers cannot terminate, demote, or penalize employees simply because they exercised their leave rights.

When Performance Problems and Protected Leave Overlap

The challenge becomes more complicated when performance concerns already exist. Several recent matters involved employees with documented performance problems, accommodation requests, or lengthy periods of leave. In those situations, the critical question is not whether an employer may ever terminate the employee. It is whether the employer can clearly demonstrate that its employment decision was based on legitimate business reasons that are separate from the employee’s use of protected leave.

Employers often run into trouble when they tolerate poor performance for months, fail to document concerns, and then decide to act only after an employee requests leave. Even when the employer’s concerns are genuine, the timing can create the appearance that the leave request triggered the adverse action.

Address Performance Problems Early

For business owners, the lesson is simple but important: address performance problems when they arise. Waiting until an employee takes leave, requests an accommodation, or reports a medical condition can dramatically increase both legal risk and the complexity of the employment decision. Protected leave does not provide immunity from discipline, but it does require careful documentation and consistent treatment. The stronger the performance documentation before the leave request, the stronger the employer’s position if later employment decisions become necessary.

Six Planning Tips for Employers

1. Manage performance issues early. Do not postpone difficult conversations. If an employee is underperforming, address it when the problem appears, not months later when protected leave or accommodation requests enter the picture.
2. Document consistently. Coaching conversations, written warnings, performance improvement plans, and follow-up discussions can become critical evidence that business decisions were performance-based rather than leave-related.
3. Separate medical information from personnel records. Accommodation requests, medical certifications, and leave documentation should be handled through a separate process and maintained confidentially.
4. Engage in the interactive process. When an employee raises a medical condition or requests an accommodation, employers should promptly engage in good-faith discussions regarding possible accommodations and carefully document those efforts.
5. Review your policies before an issue arises. Leave, attendance, communication, accommodation, and job abandonment policies should be updated regularly to align with the rapidly changing Washington employment law landscape.
6. Check your EPLI coverage. Employment Practices Liability Insurance (EPLI) can be a valuable safety net in these situations. Even employers who do everything by the book can still face a claim. EPLI covers claims brought by employees for discrimination, harassment, and other non-wage and hour issues, giving employers confidence and peace of mind.

The Bottom Line

Washington employers can still make difficult employment decisions, even when employees are on leave or experiencing medical issues. However, those decisions are far easier to defend when the employer acted promptly, documented concerns consistently, followed established policies, and addressed performance issues before protected leave entered the picture. In today’s legal environment, the old management advice still applies: hire carefully, document consistently, and when an employee clearly is not a fit, address the issue promptly rather than allowing it to linger until it becomes a far more complicated leave-management problem.

Navigating a situation where performance concerns and protected leave intersect? Equinox Business Law helps employers document decisions properly, manage the interactive process, and reduce risk before a routine performance issue becomes a costly claim.

Contact our team to talk through your specific situation.