Can an employer deny you reinstatement after FMLA?

UPDATED: Nov 18, 2011

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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