Job Elimination

sgarcia

We have an employee who has been out on FMLA for @ 6 weeks. During this time period her supervisor has realized that this position is not needed. Her absence has not caused strain on the department. Is it possible to eliminate the position as it is not needed?

Don D

My advice based on having dealt with FMLA since its inception is to not do what you advocate. In a suit alleging FMLA retaliation or one that charges you with not returning an employee to the job following FMLA, a jury can easily be swayed to agree that the only reason you found the job redundant was because the incumbent went out on FMLA. Your best approach would be to have begun the elimination process before the FMLA. Absent that, your next best approach is to return her to work and then evaluate whether the job is essential. The first question her attorney will ask you on the stand is, "So, are you saying that the job was essential until the day she went out on approved medical leave, and then you decided, while she was out recovering from surgery, flat of her back, and without income, that her position was non-essential and you did not want her back, is that what you're telling us?"

System

My understanding is that you can go ahead and eliminate the position; BUT.....you must have available for the returning FMLA employee a position similar to that he previous held; i.e. does not have to have the same duties and responsibilities, but same pay, same shift, similar duties. Just went through this with a department that was downsizing and one of the affected employees was currently out on FMLA leave. Hope this helps.