Can an employer deny you reinstatement after FMLA?

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Can an employer deny you reinstatement after FMLA?

My employer has granted FMLA for pregnancy. I feel however that I am being discriminated against due to being pregnant. Among other things my employer is stating I will not have a job when I return due to being a key employee and causing grievous economic injury. However, I do not not understand how they can classify me as a key employee. I am paid hourly and do not fall in the top 10% of highest wages in the company. Is what they are trying to do legal?

Asked on November 18, 2011 under Employment Labor Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

It may well be illegal, and you should speak with an employment attorney--you may be able to sue for reinstatement and/or monetary compensation.

If your company is covered by FMLA, they may NOT retaliate against you for using it by not letting you return to work--and that would be the case even if you were a "key employee" and they suffered "grievous economic injury." It's possible they could reinstate you in a different position, if they had to fill your specific job with someone else because of the potential for economic loss or business disruption--but they'd still  need to reinstate you. They could possibly terminate you despite FMLA for completely unrelated reasons (e.g. restructuring or cost cutting, or if you had significant performance issues)--but not because your leave hurt them in some way.

In short, from what you write, there is a good chance you have a cause of action.


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