Leave Policy/Compliance

Ask the Expert: Can We Demote Employee Returning from Maternity/FMLA Leave?

Question: We have an employee who works in our accounting department who will soon be returning from maternity leave. During her absence, we found a great number of errors in her work. We do not want to put her back in the same position as her errors have cost the company a significant amount of money. Can we put her in a different position with the company at a lower wage?

maternityAnswer from the experts at HR.BLR.com:

Thank you for your inquiry. Generally, the Family and Medical Leave Act (FMLA) requires covered employers to reinstate employees returning from FMLA leave to their former position or another position with “equivalent employment benefits, pay, and other terms and conditions of employment.” However, the FMLA does not protect employees who are disciplined or terminated for reasons unrelated to the FMLA leave.

The FMLA regulations specifically state that 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.” (See 29 C.F.R. §825.216(a)).

Accordingly, the FMLA’s reinstatement requirement is not absolute and the law does not require employers to maintain the same employment of employees on FMLA leave if the employer has had job-related performance problems with the employee and can show that it is not taking action because the employee took FMLA leave.

So, it is possible that if you have had legitimate performance problems with the employee, you may be able to reinstate her to a different position with lower pay if you have sufficient evidence of the problems. You should explain the decision to the employee as well as your expectations for her in the new position.

However, since you have not discussed these performance problems with the employee prior to her leave, and if your organization has a progressive disciplinary policy allowing employees to improve their performance before disciplinary action is taken, then the employee may be able to claim she is being treated more harshly than employees who did not take FMLA leave.

In this situation, you should be able to show that, if you had discovered these deficiencies when the employee was working, you would have taken the same action to demote her immediately without giving her an opportunity to improve. If you cannot, then an alternative approach would be to reinstate the employee to her original position or an equivalent one and specifically discuss her performance problems and give her an opportunity to improve. Then, if she does not improve her performance, you can demote her with less concern that she would file a FMLA or other claim.

Because of the potential for FMLA claims based on failure to reinstate to the same or similar position, you should consult with an attorney on this matter.