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Aug09

Maternity leave labor law

I have an employee who left on maternity leave for six weeks. Am I obligated to take her back full time (as she was), and for the same hours? I would prefer to change her hours when she comes back. Thank you.

The employee’s right to job reinstatement depends on the federal or state leave law covering the employee. Let’s assume the employee is on approved FMLA leave.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave to care for newborns, newly adopted children and seriously ill family members, or to recover from their own serious illnesses.

Upon return from FMLA leave, an employee must be restored to his original job or to an equivalent job. An equivalent job is one which is practically identical to the original job in terms of pay, benefits, and other employment terms and conditions. Generally, an employee is entitled to be returned to the same shift or an equivalent schedule. Full time status would most likely be considered an employment term that shouldn’t be altered. Not reinstating an employee to his original job or an equivalent job simply because the employee was on leave violates the FMLA.

There are a few exceptions to an employee’s reinstatement rights. Reinstatement is not required if the employee’s position would normally have been eliminated if the employee didn’t take FMLA leave; the employee took FMLA fraudulently; the employee can’t perform the essential functions of the job; or the employee is considered a key employee. A key employee is a highly paid employee whose reinstatement would cause substantial and grievous economic injury to the employer.

In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.
Denying an employee reinstatement to his original position or an equivalent position may violate the FMLA and result in a costly lawsuit. Thus, the safest option is to return the employee to her full time position.

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This entry was posted on Saturday, August 9th, 2014 at 12:14 pm and is filed under
Labor Laws.
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