Here’s a twist on the’s requirement to restore an employee to her previous job after she returns from leave: If an employee has been provisionally promoted but takes , she’s not necessarily entitled to the new job when her leave expires.
That’s especially true if the promotion comes with a probationary period and the employee simply doesn’t work out.
Just be sure not to hold heragainst her.
Recent case: Dorine Olson worked for Naples Community Hospital until she died from advanced breast cancer.
When she was first diagnosed, she told her supervisors and filled out an FMLArequest form.
She took several weeks off for surgery and had intermittent leave every Friday for chemotherapy. Her condition was common knowledge at the hospital and co-workers held several fund-raising events for her benefit.
After her intermittent leave was approved, she was offered a promotion intofrom her largely clerical position. She accepted the promotion, which came with a 90-day probation period. Olson worked closely with her supervisor to learn the job, but had trouble adjusting to management. Her probation was extended for an additional 60 days, but she still didn’t perform at the expected level.
Olson was moved to another clerical position. Then she died.
Her estate sued, alleging interference with her right to reinstatement under the FMLA because she was removed from the management job.
The court said the estate had no case. When her leave was approved, she held a clerical job. The fact that she was promoted later did not mean she was entitled to keep the new job simply because she was usingleave. (Jenks, et al., v. Naples Community Hospital, No. 2:10-cv-197, MD FL, 2011)
- Common sense: It's OK to urge employee to use paid leave instead of unpaid FMLA
- Keep solid time records to prove whether employee is eligible for FMLA leave
- Putting employee on FMLA leave: Who decides?
- Minnesota Unemployment Insurance Law
- Terminating without giving a specific reason? Document rationale for the record, regardless