A manager in your company has a dilemma, and he wants you, the HR manager, to tell him what to do.
He says, “I have to let someone go. I think it should be Joan. But she’s been out on FMLA leave. So can I lay her off anyway?”
You begin to explain that Joan’s absences can’t be held against her. But the manager cuts you off.
“I know that. The layoff has nothing to do with her being out on leave.”
So, you ask, is Joan doing a bad job?
“No, her performance has been acceptable. I’d keep her on if I could. But I’ve looked at everyone’s job and hers is the one we can eliminate with the least disruption. We can divide up her responsibilities between Ellen and Mike. Plus, she earns more than anyone else. If I eliminate any other position, it’s going to create big problems. So can I do it?”
What would you tell the manager? Is Joan off limits just because she’s out on FMLA leave? And if someone else has to go instead, that’s hardly fair, is it?
The law vs. reality
Under FMLA, you don’t have to reinstate an employee after FMLA leave if his or her job was eliminated in the meantime. So it sounds like the company’s on solid legal ground.
But in the real world, an employer who did that got slammed. A nurse-manager at a hospital had taken FMLA leave. The day she came back to work, she was told her position had been eliminated and her responsibilities divided between two lower-paid employees. She was given a choice of another job at the hospital or 12 weeks of severance pay.
Instead, she sued, alleging FMLA retaliation. The court saw it her way. She got her old job, with back pay and the hospital paid a fine.
What do you think? Did the court make the right call? Leave a comment and share your views.
Cite: Parker v. Hahnemann University Hospital.
photo credit: Seattle Municipal Archives
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