Sue is a full-time employee in Colorado out on 8 weeks of FMLA leave. When she returns to work, must she return to the same job, or can her employer put her in another position?

The answer depends on the duties of the other position. Under FMLA (Family and Medical Leave Act), the employee is allowed up to 12 weeks of unpaid, job-protected leave. That means that when the employee returns, he or she must return to the same job, or to a job with comparable working conditions, salary and benefits.

For example, say Sue is one of the ten administrative assistants in her department. When she returns from FMLA leave, her employer is perfectly within his or her rights to place her in another administrative assistant position, as long as her salary, duties and benefits remain comparable to the job she left.

If Sue is the only administrative assistant, however, and her employer moves her to telephone operator at half the salary or half the hours, that is a violation of FMLA.

The term “job-protected” does not mean the employer can pick and choose what position and hours to give a returning employee. It also does not mean the employer cannot put someone else in that position while the employee is on leave. The company can hire a temporary worker to do the work, as long as the new hire realizes the job ends when the absent employee returns from leave.

Companies can also hire an additional permanent worker, with the clear understanding the he or she will be moved to another position upon the absent employee’s return. In Sue’s case as one of ten administrative assistants, her work could be divided among the remaining nine assistants while she is on leave.

One situation where an employer can change a worker’s job while he or she is on leave is if the company experienced general layoffs while the employee was gone. For instance, if Sue’s company laid off some of the administrative assistants while she was on leave, her employer could legally terminate her as well.

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This entry was posted on Tuesday, December 2nd, 2008 at 5:36 am and is filed under Labor & Employment Laws, State Disability Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.