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change in job description while on FMLA

Is it ok to move an employee to lower position while on FMLA? She will have the same hours and pay but the job is completely different (Outbound to inbound) and can be viewed as a demotion since there are additional testing, training, and probationary period.

No. If the fact that the employee is on FMLA plays any part in the decision to demote her, that is illegal retaliation under the federal Family and Medical Leave Act. You must return this employee to the job she held before she went on FMLA. That means the same job, with the same hours, duties, pay, working conditions and benefits.

An employer cannot take any negative action against an employee due to a pregnancy, medical issues or use of FMLA. Demoting the employee, requiring her to be retrained and go through an additional probationary period are all negative actions prohibited by FMLA.

If the employee is on FMLA due to a medical issue, demoting her may also be illegal discrimination based on a perceived disability. If she is on FMLA due to pregnancy, that may be illegal discrimination based on sex.

An employer can take any action against an employee on FMLA that would have been taken anyway, if the employee were still at work. If you were demoting a dozen assistant managers to front desk clerks, you could also demote an assistant manager who was on FMLA. However, when you demote a single employee who is on FMLA, that is usually illegal retaliation.

Our recommendation is that you return this employee to her job after FMLA. There is really no way around that provision of the law.

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This entry was posted on Tuesday, March 15th, 2011 at 7:26 am and is filed under
Attendance Management, Human Resources Management.
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