Q. Our medical practice has a night nurse who answers calls for patient emergencies and then relays those emergencies to the doctor, if necessary. Recently, business has been slow, and we are considering eliminating the night nurse position and using an answering service instead. Our night nurse (who has not been informed of the company’s plans regarding her position) has notified us that she will be taking off several days to spend time with her husband who is returning from active military duty. We don’t want her to think that we are eliminating her job because of her planned leave. Any suggestions?
A. It sounds as though your night nurse plans to exercise her rights under the Military . This act allows spouses, parents, grandparents and siblings to take up to 10 days off from work every 12 months to spend time with a family member who has been called to or is returning from active military duty. The act requires employers to restore an eligible employee to his or her original position (or an equivalent one) upon returning to work.
Retaliation against an employee who has taken leave under the act is prohibited. The situation that you described does not seem retaliatory in nature. As long as you have a legitimate reason for eliminating her position (which you seem to have), you are not in violation.
However, there is no guarantee that your nurse will see it that way. She might decide to sue. The key when thinking in terms of legal risks is what evidence you have to show that you made the decision to eliminate the position before she requested leave.
Regardless, as long as you eliminate the position—meaning you don’t replace your employee with another nurse—she will have a difficult time establishing that her leave was the reason for the termination.
- FMLA allows longer paid leave than worker requests
- Altering time sheets can mean personal liability for managers
- Lessons from the Courts: Sept. 2009
- Employee works despite FMLA leave? That's not your fault--nor FMLA interference
- Transferring an employee may be retaliation, but merely discussing a transfer isn't