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Employees who run out of FMLA leave and are fired under a policy requiring mandatory dismissal for excessive absences may be invited to apply for other open positions when they recover enough to work.

Be careful how you handle those reapplications, especially if one of the terminated employees was off because she was pregnant and ran out of leave before being able to return. Favoring former employees who weren’t pregnant could invite a pregnancy discrimination lawsuit.

Avoid trouble by always carefully documenting your decision to rehire some employees but not others. As the following case shows, if you have solid business reasons for your move, you won’t lose the lawsuit.

Recent case: Angela LaFary worked as a field clerk for a company that processes stone for road construction. LaFary became pregnant and developed complications that meant she had to go on bed rest. She took one week of vacation, followed by 12 weeks of FMLA leave. Then she took another 180 days of short-term disability leave.

Company policy required termination after exhausting available leave, so LaFary lost her job shortly before she was ready to return.

She was told she was welcome to reapply for open positions, but was not rehired. She sued, alleging that a male employee who reapplied was rehired and that the difference amounted to pregnancy and sex discrimination.

But the company was able to show that it had good business reasons for the different treatment. First, the man was rehired earlier, during better economic times and had specialized skills the company needed. Second, LaFary didn’t have critical skills and tried to reapply at the same time the company was cutting its workforce by a dozen employees. The court said there was no evidence of discrimination. (LaFary v. Rogers Group, No. 09-1139, 7th Cir., 2010)

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