Employees who takeare usually eligible for reinstatement, but not always. If you were going to eliminate the position anyway, the employee may be out of luck.
Before you deny reinstatement, be sure you can clearly show that the position was cut for reasons completely unrelated to the employee’sleave. Show that by proving you made the decision before the employee requested leave or that it was driven by business necessity, backed by solid economic data.
Recent case: Terri Creech worked for a regional hospital. Sometime in the fall of 2006, HR and the hospital determined that her job would be eliminated, with some responsibilities transferred to other positions.
About three months after that decision, but before it was announced, Creech asked for FMLA leave to undergo hip replacement surgery. Her request was granted and she had the surgery.
But when she sought to return to her job, she learned it had been eliminated. Creech sued, alleging interference with her right to FMLA leave and reinstatement.
The court said her reinstatement right was limited. If the hospital could show it would have cut the job regardless of whether Creech took leave, then she wasn’t entitled to return to her job.
Based on testimony describing the decision to cut the job—and evidence the decision was made before Creech asked for leave—the 11th Circuit Court of Appeals dismissed the case. (Creech v. TIFT Regional Hospital Authority, No. 10-14894, 11th Cir., 2011)
Final note: The employer did everything right in this case. It had solid records showing when it made the underlying decision. It also approved the leave while the position was still active and only terminated Creech after the job had been officially eliminated.