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FMLA: No reinstatement guarantee for trial job

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in FMLA Guidelines,Human Resources

Here’s a twist on the FMLA’s requirement to restore an employee to her previous job after she returns from leave: If an employee has been provisionally promoted but takes intermittent FMLA leave, 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 her FMLA leave against 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 FMLA intermittent leave request 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 into management from 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 using intermittent FMLA leave. (Jenks, et al., v. Naples Community Hospital, No. 2:10-cv-197, MD FL, 2011)

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