Medical Leave

Joan

We have an employee whose position is being eliminated, probably within the next 60 days. This employee brought in a physician's note that he should be off work for four weeks due to a torn ligament. If his condition does not improve at that time, surgery will probably follow. Can anyone give me advice as to what to be careful for, as far as violating any laws. If it is determined that the position can be eliminated and he is still out on FMLA, what repercussions can there be? Thanks for any help with this issue.

LindaS

This is an issue that has been addressed in other posts but, to summarize in a nutshell, as long as you have documented proof that the position is being eliminated due to business reasons, you can go ahead and eliminate the position. FMLA does not give an employee an more rights than they would have if they were actually working.

Don D

Linda is exactly right. Be sure to have notes of dates of discussions and who was involved in the discussions re elimination of the position. Memos will be even better, but whatever proof you have that the elimination was being considered prior to the FMLA or whatever does develop. Not knowing your particular state's comp laws, there may be some issue involving retention of people out on comp. But, under FMLA, there is no federal protection in a case such as yours. Caution: It will absolutely not protect you for the company to say something like, "Well, we had sorta thought about maybe eliminating that job anyway." That's too weak an argument.