FMLA reinstatement

josieB · June 2006

We have a VP that has taken FMLA for depression and anxiety. Before taking leave she resigned the position she held, but would like to be assigned to another position upon returning. Are we required to assign her to an equivalant position, with equal pay, benefits and terms and conditions due to the fact that she voluntary stepped down from her positon? It may make it necessary for us to create a position, and we don't want to do that.

Whirlwind · June 2006

Why did she resign knowing that she was entitled to FMLA? What, if anything, did she say concerning her expectations or hopes about what she'd be doing when she returned?

I can't quote you an FMLA rule, but it seems to me that by resigning she gave up her right to an equivalent position.

SMace · June 2006

She resigned and then took leave? Did she fill ou the paperwork? Did you grant the leave?

If you are going down the resign "road" and not offer her a position, it may be a slippery slope. I would contact an attorney. You can very easily get your ass handed to you when it comes to FMLA violations.

josieB · June 2006

She applied and was granted FMLA and then stepped down from her postion and requested she be considered for something when she comes back from FMLA, if she comes back. She has been here for 17 years and because of life circumstances that have led to the FMLA, we are trying to work with her. We will probably have a place for her, but not necessarily at the level she was before leave, which is my concern. If she refuses to accept what we offer, where is our liablity? I also think an attorney may be in order.

SMace · June 2006

I think someone is confused. Maybe it's me. If she resigned, she can't come back from FMLA. She can't be on FMLA if she is not employed.

Someone in this picture doesn't understand FMLA. That is a recipe for disaster. You should absolutely involve a competent employment attorney. Good luck.

josieB · June 2006

She is still an employee- on FMLA. She resigned from the position she held. My question is, does it still have to be an equivalent postion? We have every intention of trying to keep her, but according to FMLA, does it have to be equivalent, under these unusual circumstances? I was not involved in all the meetings with her...so she was permitted to retain her status as an employee. I know someone should have had me involved through the whole process, but it didn't happen and now I have to make sure we are compliant.

SMace · June 2006

Aha. Now I understand. The 4th Circuit just decided a case on an "absolute" FMLA reinstatement right. They said there is none.

So, if she wants to come back to a different position, you do not have to create one for her if you wouldn't have absent of the FMLA.

If she wants to go back to her prior position you have to let her.

I would suggest that you get her "resignation" in writing and follow your normal job placement procedures. If there is an open job and she qualifies, great. If not, no job.

There are two keys IMHO.
1. Treat her as you treated others.
2. If you make exceptions for her, you've set precedents that will be hard to break.

You should get legal advice.

atrimble · June 2006

How does one resign one's position but remain an employee? If she had no function in the company, then I'd think she was not an employee, and therefore not subject to any restoration of employment. Did you technically have two people in your VP slot for the duration of her leave? Then I'd think you'd have to remove the new VP and replace with the one returning from FMLA, as if you'd only hired a temp. But if you hired the new VP as a regular employee assuming the former VP was not coming back, then you could have assumed employment terminated on the former VP and deny restoration to any position.

FMLA REGS: An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

Rockie · June 2006

Hopefully you got this "resignation" in writing. I agree...she can't resign a position and still be on FMLA. Usually, individuals will take their FMLA and then put in a resignation if they are not going to return.

This is sort of like the person who resigns their position, takes a position with another company, they decide they don't like it and want to come back. There is nothing to come back to if they have resigned.

Unless I am missing something...it doesn't appear this is even an FMLA case. But....since FMLA is such a slippery slope, it would be advisable to run this by an attorney.

pork1 · June 2006

ALL: This reads to me to be a failure to communicate. I believe that, from above posted threads, we have a senior leader who has come to the realization that she/he is "Peter's Principle example". She/He has risen to levels of incompentence and has the outcome of stress and all sorts of guilt with medical conditions associated". She/He has come to the relization and has resigned the position and applied for FMLA inorder to receive the benefits associated, while letting the company move on without her/him.

With a resignation letter, which clearily identifys a resignation from the position of "high levels of responsibility and accountability" and not "a resignation of employment", I would approve the FMLA and wait for the p[hysician's release after the ee returns and coordinates with us for a return to employment at any position that her physician determines, she/he can handle. We call this action as "stepping back" with reduced responsibilities, accountabilities, and compensation. Last week we had a production manager "step back", at his agreement he was transfered and place back into the eepool as a supervisor and an hourly rate of pay. Our company has marched on and over the last 6 months his work site was dragging up the rest of the company and he simply was not managing the whole work site and he just could not get it done! He is happier and more productive and it is "a win situation for everyone". FMLA was not involved, but it could have been and the above is how I would have handled his and our company situation.

PORK

SMace · June 2006

Thanks for the laugh Pork.

lnelson · June 2006

[font size="1" color="#FF0000"]LAST EDITED ON 06-08-06 AT 07:09PM (CST)[/font][br][br]I am assuming she was a key/highly compensated ee and therefore you do not have to rehire her for the same position, salary,benefits. But you also do not need to create a position for her either. You can terminate her or hire her for another position she may qualify for if the company chooses to do so.

FMLA reinstatement

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