Hi there - I am currently on maternity leave, under FMLA. I am due back in a couple of weeks and I can sense that things at work are changing and I might be facing a sticky situation when I return. My question is how long, after I return, does FMLA protect my job? Can they fire me after a week or two? Does this mean that the company has only to hold my job for the twelve weeks? Thanks.

Anniepaul: I am currently on maternity leave, under FMLA. I am due back in a couple of weeks. Can they fire me after a week or two?

Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.

If your company were to fire you after a week or two, it would be opening itself to a lawsuit.

Okay, thanks. Technically speaking though, FMLA offers no promises once I have returned to work, correct?

FMLA covers your absence for up to twelve weeks.

By itself, it does not offer you any protections on the job, but if you are let go after you returned because you were on FMLA, that would be a problem.

If, during your absence, the company discovered someone else that is a better performer than you are and wanted to keep that person on instead of bringing you back, that would be a problem.

If your performance is not meeting standards, though, the company could let you go. The company would need to show that the termination would have taken place even had the leave not been taken.

You have some inkling that all is not well. Just what is it?

I think something is going on, as the temp I trained to cover my position during my absence has been hired on a permanent basis!

That doesn't necessarily mean anything other than they liked the temp. Maybe they will move the temp when you return or keep both of you.

Yes, I agree and I have a wait-and -see attitude about it, however, there was no position to be filled, she has no experience in this position that appears to have been "created". Company policy is to post any open position, and ideally hire from within. This position was never posted. And it is no secret that the employee whom she is assisting (a president) likes her very much. Very much.

I don't believe she was hired to replace me, per se, but I know that my position can no longer be the same because part of my job was assisting the president.

Again, you don't know that she won't be moved somewhere else when you return.

Yes, that is true. I believe they HAVE to move her, because she cannot continue to do part of my job when I return from leave, correct?

Yes and no.

YOU have to be given EITHER your own job back or one that is equivalent in all respects.

How that balances out to what she does is going to be situation specific. If you are given equivalent duties to balance out, she COULD, conceivably, continue to do part of what is currently yours.

It should be interesting - there really is no equivalent, as there is only one president and that is the only position which warrants an assistant. If she is his assistant, as has been established as his preferance, where does that leave me?

Where that leaves you, if you do not get your job (or an equivalent one in all respects) back is filing a complaint for FMLA violation with the federal Dept. of Labor.

Yikes, that is what I was afraid of. I just want to go back to work and live happily ever after. The last thing I want is trouble or controversy.

Let's say I go back, and I assist the president for a while, say a month or so. Then they relieve me of those duties and assign them to her. Does FMLA afford me any protection that far after I return?

Annie, you're really starting to get into hypotheticals now. The answer is, it depends on the exact circumstances and what, if anything, you are offered.

There isn't any way we can give you a definite answer to something that hasn't happened yet and may not ever happen.

Have you contacted your employer about your return and asked what their plans for you are? Start there. We can play the "What if" game all day but it won't help you one bit until you find out the particulars which only your employer knows.

I was in a situation similar to your. I’ve trained someone to do my job before taking FMLA, and when I returned.. my position then basically given to the person I’ve trained (I was pissed). Although my salary, benefit, etc.. remain unchanged and transferred me to a different position and when I question for reasons, they said they were “re-org” based on business necessity. Employer can come up with bunch of B.S., so I quit after 3 days of returning.

Being said that, you don’t know until you return to work..!

Yes, that is so true - we can play "what if" all day (imagine what goes through my mind all day! ; ) And all night!)

But my real, concrete question is "How long does FMLA protect my position?" If they "mess" with my position say a month or so after my return, do I have any recourse under the law?

Thanks!

There is no set period of time. The fact that you took FMLA can never be the reason that they take adverse action against you. However, taking FMLA also does not insulate you from action the company takes for other reasons even if you are still on leave or have just returned. You could go back to work tommorrow and the very next day be transferred so long as the reason isn't that you took FMLA leave (or for another reason that is protected by law).

do I have any recourse under the law?

You can always contact the EEOC or your state equivalent and let them decide if there might be enough there to warrant an investigation.

Okay, thank you all so much.

I gather that FMLA only protects me to a certain extent. My position would not have changed if I did not go on leave, but I could probably never prove it. This is not going to be fun, I'm sure.