Layoff or Change of Status for an Employee on FMLA

Rockie

If an employee is out on FMLA and the company decides to change the status of the position to one of a lower level than what the employee held, are there any legal ramifications to this? I know employees are guaranteed their same or an equivalent position if they return within 12 weeks, but I believe there is something in the law that states that if this would have affected the employee whether they were on FMLA or not, then it is permissible. Is this correct?
There would probably not be any positions that she would qualify for upon her return.

Down_the_Middle

The short answer to your question is YES. If the employee would have been laid off during FMLA, the employee would not be entitled to reinstatement if she still would have been laid off at the time reinstatement is sought. Assuming you have sufficient documentation to support that this "lay-off" would've occured, regardless of the FMLA status, I think most employers error by informing the individual by phone or mail of their RIF. This s/b done in-person either once the employee has returned, or as soon as they are physically able to come in and talk about it. Getting a letter from the employer (while on FMLA) is an excellent way for this person to believe that this is contrived and only their attorney can help figure it out!!!!! Employees need time to understand and accept this type of life changing situation and when handled respectfully, works very well. I've done it many times with success.

Margaret Morford

I absolutely agree with Down-the-Middle! I always advise letting the FMLA run to its conclusion before you do anything. Would you consider offering the employee the opportunity of taking a lower paying position rather than being laid off upon return? I would certainly make the offer.

Margaret Morford
theHRedge

Gar

This can be very trickey. I assume the job downgrade is the result of a job study. If so, it seems to me that if you are able to demonstrate the following, you are in good shape:
1. There is a legitimate business need for the job study.
2. The job study or the reason for it was considered before the employee went on FMLA leave.
3. The employee's job is not the only one that was studied. And, ideally, it was not the only job that was downgraded as a result of a study.