Buyer Beware: “Job-Protected” Leave Comes With Big Caveats

Job-Protected Paid Leave including Medical Leave, Maternity Leave and more, comes with Big CaveatsMost people who have to take a medical leave from work are under the impression that they are a “protected” employee and that their jobs are secure. After all, this is what advocates fought for. With the passage of FMLA, the Family and Medical Leave Act, gone were the days when women would, by rule, wash out of the workforce because they needed a few weeks off following the birth of a child, or other employees’ careers would come to a screeching halt because of their own serious health condition or that of a close family member. Such employees were supposed to be guaranteed that these life events would no longer be career-ending, or even career-limiting.

But this is often not the case for many folks returning to work from leave. These employees find themselves on the wrong side of the career tracks after such a need with: a bad performance review because of missed sales or other results regression while they were out; placement into a new position with a starkly different career trajectory; a supervisor who feels “abandoned” by the employee taking leave; or other headwinds in the way of successful reintegration and job growth.

On Tuesday of this week, the Fourth Circuit Court of Appeals (covering the Carolinas, Virginias, and Maryland) ruled against just such an employee. Gary Waag had to miss work because of an injury he sustained when he fell from his roof. He was eligible for leave under the Family and Medical Leave Act. But the company filled his position while he was out and put him into a different position upon his return. A few weeks later, the company laid Gary off. This layoff did not effect Gary’s old position, however, and the man who replaced him continued on in the role. The Court ruled that no laws were broken.

http://www.ca4.uscourts.gov/Opinions/Published/152521.P.pdf

In reality, the FMLA only provides so much protection for employees lucky enough to be covered by it (you must work for a company large enough to have 50 employees in your area and you must have one year under your belt in the job). The FMLA prohibits employers from firing you because you took leave or from refusing to allow you to take up to 12 weeks of leave.

The law is often thought to require your employer to place you back in your old position upon your return from leave, but this is not the case. The employer can also comply with the FMLA by placing you into an “equivalent” position. Mr. Waag’s “equivalent” position dead-ended six weeks into the job, while his old position continued on unaffected by the layoff that ended Mr. Waag’s tenure.

Even when available, FMLA leave is unpaid and only economically possible for folks who can afford to go without income for up to 12 weeks or who also have private insurance policies to cover such periods. This is why many advocate push for paid leave.

http://www.nationalpartnership.org/issues/work-family/paid-leave.html

Before taking “advantage” of any leave rights (whether it is under the FMLA, Americans with Disabilities Act, or The Uniformed Services Employment and Reemployment Rights Act) it is important to know what rights you do and do not have so that you can weigh the pros and cons of taking or extending leave—if your situation allows a choice at all.

Kevin P. Murphy

Kevin P. Murphy comes to Van Kampen Law from Littler Mendelson, consistently recognized as the nation’s leading management-side labor and employment firm. During his years with Littler, Kevin represented the nation’s largest employers in discrimination, retaliation, harassment, wage and hour, labor, and non-competition litigation, in both class action and individual cases. Kevin has taken several of these cases to trial before federal and state courts, while securing the dismissal of others through motion practice. Kevin also successfully resolved many other cases through formal and informal mediation and represented employers in federal and state agency investigations.