After FMLA

I was out on FMLA for 5 weeks.
The second day I was back my manager with HR person told me that while I was out my work was gone (there were 3 people working on the project each doing specific part). I was transfered to do another, less qualified work.

A few days later I received an e-mail with status report on that project. It was stating that deadline on my particular project was in jeopardy due to lack of resources. I am not sure they filled my position in. There were hirings withing the department, however

Does this constitute FMLA violation/discrimination?

1 answer  |  asked Feb 24, 2004 08:40 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
Not a Full Guarantee

The Family Medical Leave Act ("FMLA") provides qualified employees 12 weeks of unpaid leave in order to permit those employees to tend to the medical and certain other needs that they or close family members may have. Although FMLA provides for a degree of job protection, it is not a full guarantee of job security.

In other words, it is possible for an employee on FMLA leave to legally be fired. FOr example, let's say that, while the employee is on FMLA leave, the employer experiences a massive lay-off. Under the, let's assume, the fair, objective criteria used by the employer, the employee would have been laid off if the employee was not on leave. In this case, the employee could also be properly laid off while on FMLA leave, but any employment attorney representing the employer would likely say the employer is taking a chance terminating an employee while on FMLA leave.

It is also possible for an employer to properly place an employee returning from FMLA leave in a different job than the one the employee had originally. In this situation, the critical question is how important was it for the employer to have someone doing the employee's job. If the employer needed that job filled, and it was either difficult or impossible to fill the job on a temporary basis, then the employer could properly replace the employee.

However, the employee is not out of luck. The employer still has an obligation to place the employee is a job which as close as possible to the original job. Whether an employer has fairly fulfilled this obligation can only be determined by a thorough review of all relevant circumstances.

An employee going out on FMLA leave may signal an employer that the employee has a chronic condition that the employer just does not want to deal with, because the employer has problems dealing with employees with disabilities, or the employer fears an increase in health insurance costs, or any number of other reasons. In other words, the taking of FMLA may initiate a situation involving discrimination on the basis of disability, under the Americans with Disabilities Act, or the New York State Human Rights Law. The employer may not want to fire the employee while on leave. Instead, the employer waits for the employee to return, and then starts playing all kinds of games with the employee's job, either trying to get the employee to quit, or creating a justification for firing the employee. In this case, there might be a violation of FMLA, but the violation might instead be of the ADA or Human Rights Law. It all depends on the facts.

Overall, when dealing with employment issues, it is often very difficult to just say that a general situation does or does not violate the FMLA (or other law). In most cases, you need to look at all of the surrounding facts to even get a feel for whether there has been a violation of the FMLA.

posted by David M. Lira  |  Feb 25, 2004 07:26 AM [EST]

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