We’re having problems with people coming back from FMLA/CFRA leave. Two particular situations worry us. In one case, the manager says, “I’ve redistributed the work and there’s no job anymore.” And in the other, the manager says, “We’ve hired a temp who is much better—we don’t want the person back.” Don’t we still have to restore the employees who want to come back? Help! —Sally R., HR Manager in Sausalito
It’s fairly common when leave is taken under the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) for a manager to want to deny return from leave and for you, the HR manager, to have to question the reasoning. In these situations, you must stand firm and apply the laws. Otherwise you might be approving an employment action that may not stand up later in court.
The FMLA states: “On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” The CFRA’s language is similar. (Note that there are exceptions to the general rule that employees on leave must be reinstated to the same or an equivalent position.)
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
‘Duties Have Been Redistributed’
When the manager says that the job is gone because he or she redistributed the responsibilities among other workers, it’s your job as the HR person to ask the manager questions. Say to the manager: “Let’s talk about what happened to this person’s duties, who’s doing what, and what we can work out.” What you’re really trying to find is whether these duties are still being performed. If they are—guess what—there’s still a job there for the employee on leave to return to that simply has to be reassembled.
‘I Like the Replacement Better’
Your other situation is one that comes up often—while the employee was on leave, the manager hired a temporary replacement who is a stellar employee, and the manager doesn’t want to let go of him or her. The manager says, “Well, the person who’s on leave really wasn’t that great. In fact, he or she was really bad. I’m keeping the temporary replacement.” If this is the first time the manager mentions the worker’s poor performance, it may be difficult to convince a court that you didn’t fire the employee because he or she took FMLA/CFRA leave.
As with the other situation, HR has to step up. An HR person must inform the manager that the employee out on leave has legal rights to return to the job, unless there’s a legitimate reason to terminate this individual. Perhaps another position for the outstanding temporary replacement is available.
The Lawsuit Dangers
Termination in these situations would be on shaky legal groundon two counts. First, you are violating the person’s job reinstatement rights under the FMLA and the CFRA, and second, you are likely setting up a retaliation claim.
Real Performance Problems
The situation is perhaps even more troublesome when an employee actually is having performance problems before going out on leave. It often occurs that an employee on probation asks for FMLA/CFRA leave as he or she nears the end of the probation period and you are about to terminate the person.
This can be very frustrating for the employee’s supervisor and the HR staff, but if the employee qualifies for leave under the FMLA or the CFRA, you have to provide it. So, after the person goes out on the leave, you still have the performance issue hanging out there. What to do? Even if you were planning to terminate the employee on probation anyway, you probably
don’t want to fire the person right after he or she returns from leave because that might set up a retaliation claim.
Unfortunately, there isn’t a set formula for this type of situation, but you could give the employee a grace period. Say, “Okay, you’re not on probation for the 30 days after you come back from the leave, but after that period, you’re going back on the probation, and we expect to see improvement of the performance.”
Another alternative is to reinstitute the probation for a longer period. The idea is to create additional time for the person to improve his or her performance but still not let the person off the hook entirely for the performance problems that occurred before the leave.
—CELA Editors