Job Elimination PRIOR to FMLA

karene

We are a small organization with 50 employees and minimal turnover. The volume in one department has been down significantly for about six months. One position in that department has been impacted more than other positions; the employee was actually able to cover for another employee's FMLA leave for three months without doing her own job. In the long term, we do not see volume coming back up in her area so we would like to eliminate her position.

We currently have her filling in for another position (another FMLA leave!) and working with people in her department, even though their volume is down and they don't need the help. This employee is now pregnant and due in May. Because we are a caring organization, we would like to allow her to work until her leave, take her FMLA leave (paid 12 weeks), and then not return to work. Of course, we would explain all of this up front to her and allow her to apply for any openings which might occur prior to the elimination of her job. With minimal turnover, the likelihood of this is slim.

Does anyone see anything wrong with this approach? Senior Management is reluctant to authorize this strategy even though they know the needs of the organization dictate that this position should be eliminated. (This employee has a history of suing others for rather minor (to us) injustices.)

Rockie

What's wrong with this approach is that you are setting a precedent and would need to do this for any other like situation.

The key to staying out of trouble in these situations is to ask yourself: Would this event have occurred whether or not FMLA was involved or not?

If people in a department are laid off, you are not obligated to keep someone in a position just because they are expected to take FMLA. But...be careful that you don't pick ONLY people who are on FMLA or this could be seen as retaliation.

This has happened in our practice in several instances where positions were eliminated while people were on FMLA. If we don't have positions available for the person to come back to...then there is no problem.

Sounds like this person is someone your management is a little wary of....make sure you properly plan this out before you take the issue up with her...but I'd do it before she goes out on FMLA.

karene

Rockie: We are definitely planning to do this well in advance of her leave. I'm assuming when you say that we are setting a precedent, you are referring to allowing her to work until her leave and then take it with pay. We do understand that. An unacceptable alternative would be to eliminate her position now, which would deprive her of her paid leave. Also unacceptable would be waiting to eliminate her position when she returns if we know now that it will be eliminated.

Thanks for your input, Rockie.

Ethel

I'm confused. Are you saying that you pay all 12 weeks of FMLA? I thought FMLA was geared toward maintaining insurance coverage and employee was only paid if they had other leave to cover (std, vac, etc.) and they were guaranteed a employment at the end of leave -- if position still exists.

Bottom line - if this person was not pregnant, what would you do?

Severence, bonus, will all set a precedent in my opinion. (employees WILL talk!!!)

marc

The FML is meant to protect people who intend to return to work. Doing all of this under the guise of complying with FML does set the precedent about which Rockie warned you. Your company is doing a nice thing for this lady, why not try to structure it in a way that does not set a precedent you will have to live with later?

For instance, you can give her a severance package that gets you to the same place or better yet, structure a discretionary bonus at her exit that gets your there. Others might see some issues I am missing with these approaches.

Don D

Just think, if you will go about the process of trimming your staffing pattern by just ONE job, you won't have any of this to worry about after another half year passes. You will only have 49 employees.