Maternity Leave & redundancy
JKK
40 Posts
I have someone currently on maternity leave, (there is a good chance the person will not return to work - she had twins). However, we are in the midst of a restructuring and are having to downsize. Her position is one of those slated to go - can we make her redundant whilst she is on maternity leave? Doesn't FMLA guarantee job protection? Any advice would be greatly appreciated.
Comments
In certain situations, the FMLA job restoration requirement can be superceded. If the job would have been eliminated whether or not the ee was on FMLA, it can still be eliminated. If you had a disciplinary action in motion that would or might result in termination and then the ee managed to go out on FMLA, you may still terminate him and be able to defend that if the discipline process proceeded to its logical conclusion of termination. The fact that the ee was out on FMLA when the company made a business decision to eliminate a position, does not preclude your doing away with the position. But in that case, you still would have the obligation to restore employment to either the position held or an equivalent one with equivalent benefits, pay and other conditions of employment (unless she chooses to not return). I think the law allows you to make her POSITION redundant, but not HER, unless you clearly show that she would have been laid off if leave had not been taken.