Human Resource Blog

Job Security Under FMLA

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Is there any federal law that requires an employer to “hold a job open” for an employee on FMLA?

Technically, the FMLA specifies that an employee will be returned to his or her job, OR to a job with the same working conditions, wages and benefits as the one that they left.

There is no requirement that an employer “keep a job open” for an employee on FMLA. The law doesn’t address what happens while that employee is out – it simply requires that when the employee returns, he or she is entitled to the same job, or a very similar one.  

Employers are free to hire someone to fill the position while the employee is on leave – and most companies will find that this is a business necessity. No one – least of all the federal government – expects employers to sacrifice their business or level of customer service when an employee must take leave.

There are a number of ways to handle this situation. Employers may use a temp service to cover the period that the employee is absent. They may hire a short-term employee who clearly understands that his or her job lasts only as long as the leave does.

When there are several workers with the same position, the employer may find that the remaining workers can cover the extra shifts. Alternatively, the employer may choose to hire an additional employee. For example, if a hotel has 12 desk clerks and one goes on FMLA leave, the employer may hire someone. When the employee returns from FMLA, the hotel will have 13 desk clerks. This makes sense in an industry where turnover is fairly high.

Some positions involve more responsibility, and are harder to fill. One great solution is to promote an employee to “Acting Manager” or “Acting Fire Captain” with the clear understanding that when the employee on FMLA leave returns, the “Acting” employee will resume his or her former position. This is a great way for an employee to gain valuable experience and build their resume, while filling an important need for the employer. It’s a win/win situation, as long as the employee understands clearly that the “promotion” isn’t permanent. In cases like this, a written agreement is an excellent idea.