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OK to redistribute work as FMLA leave nears

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

When an employee plans on taking FMLA leave, employers have to plan for the impending absence. That can include reassigning the employee to a less “mission-critical” job or temporarily removing responsibilities.

Don’t worry that doing so will trigger a successful FMLA lawsuit.

Both the FMLA regulations and recent court decisions allow employers to make temporary job changes—as long as the employee continues to receive the same pay and benefits as before.

Recent case: Crystal Hyde was working for KB Home when she became pregnant. She asked for intermittent FMLA leave so she could go to medical appointments, and full-time leave for giving birth and spending time at home with her newborn. The company approved her request.

In the months and weeks leading up to Hyde’s due date, her job duties and responsibilities were split among co-workers. KB Home explained that colleagues needed to be trained so they could immediately step in when Hyde went to medical appointments and when she would later give birth.

Hyde sued, claiming that cutting her job responsibilities—which she said left her with little to do while waiting to give birth—was an illegal adverse job action intended to punish her for requesting and taking FMLA leave. She also said it was sex discrimination.

The 11th Circuit Court of Appeals disagreed, noting that FMLA regulations clearly allow temporary reassignments for employees who need intermittent leave.

The reasoning: Transferring job duties to prepare co-workers to fill in is akin to a temporary reassignment. Ruling for the employers, the court also noted that the only things that changed for Hyde were her job duties—not her pay or benefits. (Hyde v. K.B. Home, No. 09-11755, 11th Cir., 2009)

Note: Since the move didn’t violate the FMLA, it couldn’t also be sex discrimination.

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