The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 229
Restructuring and Layoffs
If the employee’s job has been eliminated, the employee is not entitled to reinstatement.
For example, let’s say the company outsourced the work of the employee’s
department or closed the facility where the employee worked. In this
situation, the employee would have lost his or her job whether the employee
took FMLA leave or not, and the employee has no right to be reinstated.
However, this rule applies only if the restructuring is unrelated to the
employee’s leave. Changes made to accommodate the employee’s leave—such
as hiring a temporary replacement or shifting some job responsibilities
around—don’t relieve the company of its obligation to reinstate the employee.
And, if the company made structural changes because it wanted to avoid
reinstating an employee who took leave, that would violate the FMLA’s
prohibition against discriminating against employees for taking FMLA leave.
Example 1: Alexander takes FMLA leave to bond with his newborn son. While
on leave, his company implements layoffs. Fifty of the least senior employees in the
company lose their jobs, and Alexander is one of them. Alexander has no right to
reinstatement.
Example 2: Now assume that Alexander’s company didn’t have major layoffs.
Alexander’s manager, Maya, is upset about his leave. Maya doesn’t think Alexander
should use a full 12 weeks of FMLA leave—after all, his wife doesn’t work, and she
can stay home with the baby. Maya decides to eliminate Alexander’s position so
she doesn’t have to reinstate him. She has already redistributed his work while he
is on leave; she figures she’ll just wait a while, then hire someone—under a new job
title—to pick up the slack.
Maya’s actions violate the FMLA. The only reason Alexander has no job to return
to is because Maya wanted to punish him for exercising his legal right to take FMLA
leave. What’s more, Maya’s sexist reasoning could leave her company open to a discrimination
lawsuit.