No job for employee after medical leave: Is that legal?
April 21, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views, Recent Decisions
An employee takes FMLA leave. Her duties are shared by the rest of the department, and her supervisor decides they really don’t need her anymore. Can the company lay her off?
The answer, according to a federal court in Georgia, is “no.” Here’s what happened in a recent case:
A department manager took 2 months of FMLA after she adopted a child. While she was gone, her duties were shifted to other employees. Due to various factors, the department shrank in size during her absence, resulting in even less work for the woman to do. So as a cost-cutting measure, when the leave was over, the company decided not to bring her back on.
She sued. The company claimed the position was eliminated completely. But the court ruled for the woman, saying it looked like the woman wouldn’t have lost her job if she hadn’t taken leave – so it’s now up to a jury to review the facts.
Sticky situation
It’s not always illegal to let an employee go while on FMLA leave. For example, if someone’s picked for inclusion in a reduction in force (RIF) – for reasons unrelated to taking leave – than a court will usually find that to be legit.
However, it can be very tough to prove that the leave had nothing to do with it. In this case, the woman wasn’t let go in a larger RIF (in fact, the company was apparently growing, overall) and no formal organizational review was done to determine whether or not her position was no longer necessary.
Had either or those things happened, the outcome could have been different.
Cite: Conner v. Sun Trust Bank
Tags: medical leave, returning from FMLA leave, Sun Trust Bank
April 21st, 2008 at 6:13 pm
[...] No job for employee after medical leave: Is that legal? By Sam Narisi An employee takes FMLA leave. Her duties are shared by the rest of the department, and her supervisor decides they really don’t need her anymore. Can the company lay her off? The answer, according to a federal court in Georgia, is “no. … FMLA Still Needed To Protect Me After Going Back 4 Hrs Day LD? By Mom I started back LD 4 hours a day on 4/14, the day I handed in my FMLA form that the ER asked me to. Now the benefits specialist has said that since I’m back part time, there is no need for her to turn in the FMLA form. Is this correct? … [...]
May 21st, 2008 at 2:06 pm
I thought that FMLA was kind of a guarantee that an employee would be taken back, if not in the same position then in an equivalent position?
May 22nd, 2008 at 10:29 am
Tim,
It’s not really an absolute guarantee. If an employee was going to be let go anyway (for performance, or a reduction in force, for example) the fact that he or she took FMLA doesn’t offer extra legal protection.
However, it is often hard for a company to prove the leave had nothing to do with the decision, so most companies approach it extremely carefully.
Sam Narisi
Editor
HRLegalNews.com
May 28th, 2008 at 2:23 pm
If an employee has exhausted FMLA and is still out on a leave of absence (after the 3 month FMLA period) can we let the employee go? Or if they come back after 6 months are they still entitled to the job they had prior to their leave?
June 3rd, 2008 at 4:55 pm
Lynn,
Letting an employee go after he or she has run out of the required amount of leave would not violate FMLA.
However, there may cases where an employee’s condition also qualifies as a disability under the Americans with Disabilities Act, and allowing extra time off would be a “reasonable accommodation” under the ADA. That’s the only type of case I can think of in which leave beyond the 12 weeks would be legally protected.
Sam Narisi
Editor
HRLegalNews.com