Replacing employee on chemo

lorrie

Touchy situation – your advice would be welcome.

Approx. 4 months ago our warehouse supv. started chemo treatments. Due to age & previous heart condition, our president anticipated an extended absence, and due to the necessity of having someone in the position, our president hired a new person. This person was hired as a permanent employee and was given the same title as the original supv. (Not a good way to start out.)

The original supv. ended up missing very little time (approx 2 days every 2-3 weeks) and it has been a little awkward having this new guy hanging around. And yes, there has been some animosity between the two. (Although I think the new guy has done a decent job of fitting in, considering the circumstances.)

Now the original supv. ended up missing all last week and is expected to be gone a few more weeks. New guy is quickly moving in to take over duties (which I understand, this is what he was hired to do.) Yesterday, president mentions to me that he has been working to get original supv. to understand that he is now supposed to be reporting to the new guy.

I would like to have a conversation with the president and line out some kind of plan to smooth things over with the original supervisor, and help these two work together well when he returns. But aside from avoiding emotional blowups, I also want to avoid potential lawsuits. The original supv. is 65, but we have no mandatory retirement age, so he can work as long as he is able. (He has been here well over 20 years.) To my knowledge he is not losing any pay, but possibly some of his duties.

One other factor: we are in the process of expanding, and one explanation of hiring the new guy is to take care of some transition issues during this expansion.

Your thoughts / advice?

HRLASS

What happened to the FMLA in this mess? Was the employee eligible for it? Had he already used his time? Would he qualify as a "key" employee or just a needed position? Did you notify him that he was eligible for FMLA? FMLA means job protection and if you or someone in your organization hired someone to replace him and gave the new employee his job and title, and then asked him to report to his replacement, you are in hot water!

lorrie

You'll love this. I spoke to the ee about FMLA when this all started and he said something about how he was not going to mess with that crap. I mentioned to the president that I wanted to force the issue on the paperwork, or atleast give ee a written statement that we had started the FMLA clock, and he said let it go, don't worry about it. (His thought was that he did not intend to cut the ee lose after 12 weeks anyway, so he didn't want to mess with it.) So I let it go (this is a one-time exception kind of thing.)

I expect, if it comes down to the ee missing too much time, then he will file for FMLA and be granted 12 weeks at that time.

So I'm more concerned about the job share deal. (The president doesn't see any reason why we can't just add a position, stating that the original ee hasn't been permanently replaced.)

So, based on FMLA protection, does changing the reporting structure qualify as a concern, if his pay and title, and most of his job duties remain the same?

Whatever

If it walks like a duck, if it quacks like a duck and if it smells like a duck, it is a duck. No matter what the president thinks, the company has given every appearance of ignoring FMLA, ADA, Age-discrimination etc. One-time exception is never an excuse for appearing to ignore the law. At this point, you should get in touch with an attorney.

Gillian3

You need to get your attorney involved, pronto. You have potential FMLA, ADA and age discrimination issues.

Rockie

I echo the sentiments of the others. If this guy gets at least a decent employment attorney, he will probably be able to retire handsomely.

Even if the employee did not want to mess with "all that crap", I would have sent him the paperwork certified, along with a letter explaining why this needed to be done and the repercussions to him if it was not done. You, as the employer, knew this was an FMLA qualifying event, so you are on the hook. I'd have designated this as FMLA anyway knowing that he was undergoing chemo.

The other problem is the ADA. Even if this employee was not qualified for FMLA or had run out of FMLA,he would still qualify under ADA given the seriousness of his condition.

All this gives the appearance of yes, this guy has been replaced. Someone was brought in while he was out with the same title, pay, etc.

I do believe you need your attorney on this one.

LivindonSouth

"So, based on FMLA protection, does changing the reporting structure qualify as a concern, if his pay and title, and most of his job duties remain the same?"

To answer that question, yes. The employee is entitled to be returned to the same or an equivalent position. An equivalent position is one that is virtually identical to the former one in terms of....and WORKING CONDITIONS (caps mine)....including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities....same responsibility and authority.

I have partially quoted from 29CFR 825.214 and 215. Putting this man in another reporting relationship, having him report to a new guy, is a violation of the Act.