Downsizing and FMLA leave

Q. Our company is in the process of going through a reduction in force. One of the positions that has been selected for elimination belongs to an employee on FMLA leave. Can we still eliminate the position?

A. Generally, yes. Most courts hold that an employer may deny reinstatement to an employee on FMLA leave if the employer can show that it would have discharged the employee even if he or she had not been on FMLA leave. Of course, as with any reduction in force, the company should be able to clearly describe and document the nondiscriminatory factors used in selecting the targeted positions. It’s up to the company to show that it would have eliminated the position even if the employee were not on FMLA leave.