Opinion on difficult business decision & FMLA

KathiHR

I would like your opinions on a rather messy situation.

An employee, whose exempt position was slated for a layoff (unknown to her, but possibly suspected), presented a note from her doctor & a letter requesting accommodations for difficulties in her pregnancy. We accommodated her (the requests were reasonable) & were advised by our attorney not to eliminate her position at that time (possible retaliation claim). The real value the request brought her was in the protection it provided from layoff, not in the accommodation itself.

A few weeks later, she delivered a premature baby 3 months early. She is out on unpaid leave, but not eligible for FMLA because she hasn't been with us 12 months yet. So she has no right to job protection under FMLA, but our attorney recommended that we not lay her off while out due to possible ADA/PDA potection. (The early delivery was due to a serious health condition potentially covered under ADA. Since she had requested accommodations & we were aware of her condition, he considered that we had been put on notice under ADA).

We still plan to eliminate this position. We have strong documentation of the financial performance of this area & the layoffs as business decisions. My question to the HR professionals is this - assuming she returns with a full release & no ADA implications, how long would you wait between her return & the layoff (in order to reduce the perception of retaliation)?

Let me throw a kink in this. After July, she will be FMLA eligible... with a baby born 3 months premature & having all sorts of health needs. If we don't act before July, I foresee years of intermittent FMLA with an exempt position that we needed to eliminate 3 months ago.

Our attorney says that the layoff is a business decision with risks any way you look at it. Huge risks laying her off too soon - huge risks waiting too long. He's right. That's why I want opinions to help me accurately weigh the risks.

When is the best time to lay her off?
Opinions please?

Don D

Honesty is the best policy. If her position was targeted for elimination and you have no policy or practice that would result in her being moved to another position, my suggestion is that the reduction in force (job elimination) should proceed as a normal business decision. Once you let all these other factors muddy the water (PDA, ADA, Retaliation, etc) what you have is muddy water. Your attorney is exercising caution, which is not a bad thing, but often not a good thing. Too much caution can render you impotent.

On the other hand, there is an even chance that she would retain an attorney if you moved to abolish her position now, and then your company would probably settle. Could be costly. Waiting awhile may make that less likely. But the caution period may never end. Let's imagine that the child runs up lost of bills and she is viewed as an insurance burden on the company and is out on multiple FMLA situations. Then your attorney might suggest there will never be a good time, free from risk, to lay her off and abolish the position. It's time for the owner of the company to make a tough decision.

marc

You mention lay-offs. I take it to mean there are more than one and that the documentation you mention would cover multiple personnel. Further, are you just eliminating her position in a particular department or more than just her in the department?

I am slowly getting to the point that there may be protection in numbers. If the business circumstances justify eliminating this along with other positions, do them all at the same time or as a part of the same plan. As Don pointed out, there may be a never ending series of evaluations that make it appear as though the company is retaliating for a number of different exposures. If I were picking the risk, and assuming multiple lay-offs and good documentation of the financial need, I would do them all together.

The PDA wants you to treat pregnant employees the same way you would all others.

Balloonman

I agree with Marc. If you have done the analysis, and are going to be laying off a whole unit, section, department etc, then do it as planned. If you are only laying this individual off then you have a different issue.
If you are laying off say 5 or 6 all from the same department, it is hard for one person to claim they were singled out when you eliminated all of them. You are allowed to run your business as you see fit. I sounds like you have thought out the complications, and possible problems so do what needs to be done.
My $0.02 worth!
DJ The Balloonman

joimack

How long ago was she slated to be laid off? Do you have any kind of leave policy that limits the amount of leave an employee can take prior to completion of 1 year of employment? Is it possible you might inform her of the decision when she comes back and give her the option of another position in the company? Maybe you'll get lucky and she will decide not to return to work! I sympathize but I do believe being upfront and honest in the way to go!
Joi

Carey

What we have done in similar situations is either notify them while they are out that their position has been eliminated. When they are released to return to work, we will look to see if we have an open position for them and if not, they will be terminated, reduction in force. Or, we have notified the person when they returned that their position was eliminated. That one is harder for the employee. We rarely RIF one person at a time, so it has always been easier to defend. We have had charges, but have always successfully defended them at the agency stage.