Human Resource Blog

FMLA Laws in Ohio

Hello. We have an employee in Ohio who has been out of the office for the past couple of months getting treatment for cancer. Unfortunately since our employee has been out on leave the economy has caused for lay offs and salary cuts at work. Now that this employee has been cleared to return to work the company cannot bring the employee back since business is so slow. Is this against the law? When things pick up we will welcome the employee back with open arms, unfortunately we cannot at this time? Any help would be greatly appreciated.

Extra notes: Small company of 15 employees currently

There is a loophole here because you are such a small employer. Even though you reference FMLA, that law applies only to employers with 50 or more workers within 75 miles. It appears that you are too small to be covered under the federal law, and Ohio has no family leave law at the state level.

Frankly, you should have handled this problem weeks or months ago. An employee on FMLA is entitled to return to his or her job, after the leave is ended. However, an employer can take any action against an employee on FMLA that the employer would have taken anyway, if the employee had not been on FMLA.

When you went through your previous round of layoffs and salary cuts, you should have eliminated this employees position, as well. You should have informed the employee of the decision at that time. Doing so would have avoided the appearance that you are illegally discriminating against this employee for using FMLA, or for having cancer (a disability under ADA.)

Our best advice is to allow the employee to return to work for 2 weeks, and then eliminate the employees position. Because you did not lay this employee off when you made other changes, it creates the appearance of discrimination if you do so now.