You can’t eliminate job because others filled in during FMLA leave

The work doesn’t stop just because an employee takes FMLA leave. As a practical matter, the employer must redistribute the absent employee’s work among the remaining staff. If that goes well, you may be tempted to cut the position entirely.

After all, if the work is getting done without the employee, you don’t really need him, do you?

Before you eliminate that position, consider the following case. Successfully working around an absent employee doesn’t mean that employee isn’t entitled to reinstatement when his leave ends.

Recent case: James Breneisen worked for Motorola, steadily assuming additional responsibilities and getting good reviews. Right before he went on FMLA leave for gastrointestinal problems, his supervisors even suggested he might be promoted to a salaried position given his growing responsibilities.

But while Breneisen was out on FMLA leave, Motorola farmed out his duties to other employees. Motorola concluded that since it had “worked through” his absence, it should eliminate his position. Motorola then reassigned Breneisen to a phone testing job, where his duties amounted to nothing more than pushing phone buttons to see if they worked. He suspected he was being held up as an example to discourage others from taking FMLA leave. The company, however, paid him the same amount he had been paid in his previous position.

Breneisen sued, alleging Motorola violated the FMLA when it refused to reinstate him to the same or an equivalent position. The 7th Circuit Court of Appeals agreed and ordered a trial. It concluded that Breneisen was entitled to an equivalent job, and that employers can’t simply say that since the work was done without the employee, it doesn’t need the employee anymore. (Breneisen, et al. v. Motorola, No. 05-2032, 7th Cir., 2008)