Written by attorney Randy T. Enochs

Terminated or Demoted While on FMLA Leave

The Family & Medical Leave Act provides protection for covered employees to take up to 12 weeks of leave under three specific conditions: -for the birth and care of the newborn child of the employee; -for placement with the employee of a son or daughter for adoption or foster care; -to care for an immediate family member (spouse, child, or parent) with a serious -health condition; or -to take medical leave when the employee is unable to work because of a serious health condition. However, does this always mean an employer must return an employee and return them to the same or equivalent position? The answer is no, but only in very limited exceptions. Also, there are lots of arguments over what is an "equivalent position." However, the guidelines for "equivalent position" are very specific and somewhat obvious. Exceptions for Employers NOT to Reinstate Employee on FMLA Leave As stated before, taking FMLA leave does not always require an employer to reinstate an employee upon attempted return but only in limited circumstances. Those circumstances/exceptions are: 1) When employee is laid off due to economic reasons or the employee's shift is eliminated. 2) Employee was hired for specific project and that project is complete. 3) When employee can no longer perform "essential functions" of job. May be obligations under Americans with Disabilities Act, however. 4) A "key employee" need not be reinstated. Key employees are amongst the highest paid with the employer. The employer has to show that it would suffer a substantial economic loss to operations. This exception is very complicated and beyond the scope of this overview article.

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