December 21, 2018
by Sarah Ewing

Documenting and discussing work performance issues with employees in relation to the ADA and FMLA

How many times have you heard Human Resources tell you to document, document, document? Well, it’s because of cases like Estep v. Forever 21. This case, from the US District Court of Oregon, is a good reminder of what can happen when you fail to document and discuss performance issues with struggling employees.

Forever 21 hired Jonathan Estep in July 2012. He quickly worked his way up to district manager, covering all stores in the state of Washington. By November 2015, he was temporarily assigned to stores in the Sacramento district. Despite his quick rise, Estep was not a top performer. In November 2015, Forever 21 identified the 100 worst performing stores in the US. Estep oversaw 6 of the bottom 100 stores, causing concern over Estep’s capabilities. Though there was internal documentation concerning Estep’s performance issues, Forever 21 never talked to Estep about his performance.

At the end of January 2016, Estep went out on Family Medical Leave. By June 2016, Forever 21, received updated medical certification estimating Estep’s return to work date on January 1, 2017. However, Forever 21 terminated Estep’s employment on June 30, 2016, citing the reason for separation as “Involuntary – Layoff/Position Elimination.” Estep sued under the ADA.

At summary judgment, Forever 21 argued that it discharged Estep because of his poor work performance in late 2015, but because Estep began his sick leave in January 2016, it never had an opportunity to terminate him. It argued that because Estep was unable to perform the essential job functions with or without accommodation before going out on leave, he was not a qualified individual. The court disagreed, remarking that Estep never received a negative performance review or was otherwise notified that he was under-performing.

Further, the Court found Estep’s multiple requests for leave to treat and recover from his medical condition were adequate notice of the need for a disability accommodation, namely extended leave. Despite Forever 21 arguing that extended leave was an unreasonable accommodation (in other words an undue hardship), the court found it never even engaged in the interactive process to make that determination.

As an employer, if you notice an employee’s work performance declining, it is important to not only document the issues, but to discuss them with the employee. Further, don’t forget that employees don’t need to use magic words to request an accommodation. Though Estep’s request for an additional 6 months of leave may have been unreasonable, Forever 21 never performed an analysis or documented why it was unable to accommodate the additional leave. An employer should explore whether additional leave needs to be offered as a reasonable accommodation every time an employee requests leave after expiration of state and federal leave laws.

If you need assistance with handling difficult employees with overlapping leave laws, please feel free to contact me at