While she was on leave, company decided her job could be eliminated
October 6, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views, Recent Decisions
FMLA is strict about letting employees come back to work after medical leave. But what if an employee takes leave, and a manager decides the work can be done without her?
The employer could get in serious trouble, according to one recent court decision.
After an employee left for FMLA leave, the company reorganized her department to handle the workload while she was out. It turned out that the remaining employees were perfectly capable of getting everything done.
So the company decided to eliminate the woman’s position and not bring her back to work.
Wrong move, said the judge after the employee took the company to court. Companies can only deny reinstatement when employees would’ve lost their jobs even if they didn’t take leave — for example, due to a reduction-in-force that was being planned anyway.
In this case, the court found that her termination was directly related to her use of FMLA — in other words, if she never took leave, she never would’ve been let go.
Cite: Stephens v. Neighborhood Services Org.
Tags: FMLA, position eliminated, reinstatement
October 9th, 2008 at 9:45 am
I have a question—
I have been out on FMLA, SDS and not LDL. I was diagnosised wit Colon Cancer in may and have been going through Chemo since. I work for a Medical Center/Hospital. On September 30, I received a phone call from the HR department stating that they were terminating me due to they decided not to extend my personal leave. Even with my doctor’s note– Can they legally do this?
October 9th, 2008 at 3:05 pm
I’m not an attorney and you give very little information in your posting, but in general, it would really depend on how long you have been on leave. If your employer is large enough, FMLA provides you with job protection of up to 12 weeks (unpaid) if you have worked for a minimum of 1 year / 1250 hours for that employer. If you have been off for more than 12 weeks of accumulated time since the FMLA leave began, they would be within their rights to terminate you. But again, this is just general information that may or may not apply to your specific case. If you really feel they have done something illegal, you should consult with an attorney who can review all the details and better advise you.
October 10th, 2008 at 4:06 pm
Even if you have exhausted your FMLA leave, if you were on Short Term Disability in conjunction with the leave you would have until the end of the 26 weeks. If you could not return at the end of that time period then your employer would have the option to suspend or terminate. This should have been explained in detail to you when you were hired and when you were approved the leave.
If the employer offers LTD then you would need to find out the restrictions, time limits, etc. of that leave which again should have been explained to you in benefits orientation and when it was approved.
Make sure that you haven’t signed off on something that you didn’t really understand upon employment. If you did then there is not much that the employer would be held liable for. However, it is still best to consult with an attorney as R. B. stated if you feel that something has been done illegally.
October 20th, 2008 at 1:41 pm
ChereneB,
I think you’re making a couple of (inaccurate) assumptions. 1) That STD is 26 weeks. Many STD plans are 13 weeks or some other duration. 2) That an employer must keep an employee’s position open for the duration of a STD LOA, even if it is in excess of FMLA regs (if FMLA applies to the employe).
Sheila Denton, be careful if you are proceeding based on CherenB’s comments.
October 28th, 2008 at 8:59 pm
Help!
I was injured and placed on STD by my doctor for 2.5 months. I worked as an administrative assistant to the president/ceo and was 1 of 3 administrative assistants. I had the lowest time on the job, however, the third admin., was only part-time and transferred from another location because of problems in the other office with co-workers. My company was in the middle of hiring a new president/ceo and once that person was placed in the position (the day of my injury) she laid off approx., 30 people prior to my return. Once I returned my position was ended 30 minutes upon my return to work. I returned on a Monday, therefore it had been decided that my position would be eliminated prior to my return. I really do believe that my rights were violated. Since then my finances have not been the same. Selling my home (short sale). I can’t seem to secure another administrative position at the same wages unless, I relocate or commute to another city.
Please help…. Thank you.
October 29th, 2008 at 10:30 am
Tammy, you would need to talk with an attorney because the details of your situation really matter. For example, you don’t really say if this was an on-the-job injury, how long you had been with the company (did you even qualify for FMLA?), what state you live in and some things like that which could factor into the legality of your employer’s actions. But basically, if your position would have been eliminated regardless of whether you went on leave or not, the company didn’t do anything wrong. I would have tried to see if there was another position where you would fit that was close to your original position, but if quite a few people were laid off during that time, there may not have been other position for you to move to. Companies are not required to create positions for returning employees during a downturn when a workforce reduction is a business necessity. If your job would have been eliminated anyway and the leave didn’t factor into the justification for the layoff, they probably didn’t do anything wrong.