Termination while on FMLA

KenB

Hi

Looking for some advice. A very small organization is restructuring a few positions and one of those positions is currently held by someone on leave for birth of a child. The position she held was that of graphic designer and the organization no longer has need for a full time graphic designer. What it needs is someone who has those skills and also can do website design. The new position will include the duties from her position plus the additional duties. This person does not have the current skills for designing and maintaining the website, though she has inquired in the past about going for training to get the requisite skills. There is currently another woman in the organization who is also a graphic designer and has the skills required for the website and the organization would like to place her in that position and terminate the woman out on leave. There is no other similar or equivalent position to offer her in the organization.

Does the organization have the obligation to take her back and restore her to the new position even though she doesn't have the skills or qualifications for that position? Do they have to allow her to go out and get the training she previously requested to see if she can do the job before making this decision? If they don't, since it's a small organization and there are no equivalent positions, can they terminate her while she is out on leave.

Would appreciate your input as always.

Thanks.

Ken

POPEYE

Ken,
You state that this is a very small organization. Is it large enough to have to offer FMLA? If so, and the restructuring / termination would have taken place even if the EE was not on leave, and you have the documentation and I mean GOOD DOCUMENTATION to back that up, then you would probably be fine to move ahead. (Please consult your legal counsel with specifics)

However, you state that the person you are looking at to put in the position is a graphic designer so what is happening to her position?

Don D

This is a sticky one. If your organization were to simply eliminate the position held by the new mother, she could easily be terminated and if there were nothing similar in the organization, she wouldn't have to be offered re-employment. The water gets a bit choppy when an employer says he is eliminating a position or restructuring when, in effect, all he is doing is shifting the duties to another person. I recently went through exactly this with the layoff of 17 salary employees, three of them on FMLA. Our attorney sternly counseled us to 'scatter' the duties of the positions eliminated, not merely shift them over to another person. He said the latter is usually viewed by the courts as a subterfuge and likely would bolster her case of FMLA retaliation or even violation of Pregnancy Discrimination Act. He advised that our case is firmer when we take the eliminated position and shake its duties up in a bag and pass them around to three or more people. That action would support the employer's claim of job elimination. You may not be able to do that with this job; but, the best advice given above is correct; contact your attorney before not re-employing a person on FMLA.