FMLA - Job Filled

LDay · January 2002

One of our clerical staff is on FMLA. Her position could not be held open for her and so we have filled it. She stated prior to her leave that she would be returning to work. We do not have and do not anticipate having a similar position available when she is released to return to work. I understand that we do not have to create a job for her, so what are we liable to do in this situation. I have not read about anything similar to our case yet which is why I would like some clarification to my question. The FMLA documentation I have read so far does not address this situation specifically and my boss is becoming paranoid about getting sued. Please help ASAP.

Down_the_Middle · January 2002

If FMLA genuinely applies to your organization, there is only 1 option for you to choose......offer this person re-instatement if her RTW is within the 12week period and she is able to perform the essential functions of the job. While you can offer her an "equivalent position" (as opposed to her exact former position), that's the option available to you. Apparently, no one told the replacement employee that this might only be a temp position------pending her RTW. I think it could be a sizeable mistake to discharge the FMLA employee "cuz you have no suitable vacancy for her"........ You will likely violate the primary provision of the 12wk job guarantee.

Theresa Gegen TX · January 2002

Unless she is a key employee as defined by the regulations (which means she makes lots of money compared to other employees-- and has other limitations like prior notice-- it doesn't have anything to do with key job duties) if she returns before her FMLA is exhausted, you MUST reinstate her either in her old position or an equivalent one. Your company really has no choice. That's the whole purpose of the FMLA -- to protect the job of the employee on leave.

If your company doesn't reinstate her, it can expect to be sued under the FMLA, lose, owe her monetary damages and may also be forced by the court to reinstate her.

I suggest you spend some time with legal counsel before telling this employee she won't be reinstated.

Good Luck!

Theresa Gegen
Editor -- Texas Employment Law Letter
Andrews & Kurth, LLP

Gar · January 2002

Just to chime in with the others, if this ermployee isn't a "key employee," reinstate her to the job she held before she went out on leave or risk losing a possible lawsuit.

LDay · January 2002

What I'm hearing from all concerned is that the rules only apply if the person returns prior to the end of their 12 week allotment. The rules do not apply if the person uses up all 12 weeks and then wants to return to the job. Is this correct?

Blanche · January 2002

Just to clarify - the FMLA reinstatement provisions apply to all eligible employees so long as they return upon the expiration of their FMLA leave entitlement, which is 12 weeks. If your employee returns the first regularly scheduled work day after her 12 weeks expire, you must reinstate her. If she extends her leave beyond 12 weeks, she is no longer qualified to receive the job protection provided under the FMLA, and you are not obligated to reinstate her. So long as she returns before or upon the end of 12 weeks, the law says she is to be placed into the same (or an equivalent) position.

Theresa Gegen TX · January 2002

However, depending on what the medical condition is, the employee may have more job protection under the ADA. Some court's have said it is a reasonable accomodation for an employer to extend medical leave under the ADA. So if you think she might be disable, you probably need to check with an employment attorney to make sure that you have accomodated her.

FMLA - Job Filled

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