Human Resource Blog

Seniority

An employee has been abusing her FMLA. She holds a position that requires her to be there often, which she is not. Can I move her to a different position even if she has more seniority than the employee that is replacing her?

There is no law that you must give work assignments or promotions based on seniority. Most companies consider total work performance in making promotions.

You say that the employee is abusing FMLA but you offer no evidence of this. If she is truely taking FMLA when she is not entitled to it, or using FMLA as vacation, and you can catch her, you can take disciplinary action against her. However, be aware that many conditions such as mirgraines can be completely unpredictable and disabling. So unless you can demonstrate that the employee is abusing FMLA, you must treat it as legitimate.

Under the current regulations, you can require that an employee on intermittent FMLA follow the same procedures to report the absence as any other employee.

However, you cannot consider the time on FMLA when making this decision. From an HR perspective, time on FMLA is not considered an “absence” for performance evaluations and disciplinary purposes. If this employees performance when she IS at work is not up to par, then you can demote her and promote someone else. However, it would be illegal discrimination based on a perceived disability for you to demote her strictly because she is using FMLA in most industries. (In some jobs, you could reassign this employee to different duties at the same rate of pay, if her requent absences were interferring with operations.)