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Returning to Work After FMLA in Delaware

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Does an employer have to give a worker returning from FMLA maternity leave the same number of hours as she had before?  The HR department says yes. The supervisor says he can’t, because he hired someone else.  The employee returns in 2 weeks. Who is right?

This doesn’t sound like a general move affecting more than one worker. It sounds as if the supervisor is singling out one employee. This employee only used 10 weeks of the 12 weeks allowable under FMLA.

So it sounds as if the supervisor is wrong on this one, and the Human Resources, or HR, department, called this one correctly.

The Family Medical and Leave Act – FMLA – guarantees 12 weeks of job-protected leave under certain circumstances. Those include serious illness, recovery from childbirth, or time off to care for a seriously ill member of the immediate family.

By job-protected we mean that the employee is entitled to be reinstated in a position with the same pay, working conditions, and benefits. Again, the FMLA offers this protection for up to 12 weeks.

We would guess that the supervisor did what many supervisors do – he hired a replacement but neglected to tell the replacement person that the job was, in fact, temporary, and only for the duration of the regular employee’s leave. So now he has two employees and a single job, and is trying to come up with a solution that he thinks will please both the regular worker and the replacement-hire.

Two examples may help explain the guidelines of FMLA.

Craig works full-time as an events planner for the public relations department of a legal firm with offices worldwide. He takes 10 weeks of FMLA leave to help care for his and his partner’s new child, and when he returns to work he’s informed that he can only work half as many hours as before. That’s because his supervisor wants to keep the “temporary” replacement on, at least at half time. Craig’s supervisor is breaking FMLA law. But now assume instead that, while Craig was on leave, the legal firm decided it needed to economize in its public relations department, and put five people on half time, including him. That would be perfectly legal.

The agency enforcing the FMLA is the Wage and Hour Division of the U.S. Labor Department. JH