If I am on FMLA, can my supervisor hire someone to replaceme?

UPDATED: Aug 5, 2011

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If I am on FMLA, can my supervisor hire someone to replaceme?

I am an employee of public school system and I have been on FMLA and I was to return to work as of the 28th of last month. I went in to the office to return my work phone as requested by my supervisor on the 21st when I was advised that she hired someone to replace my position. I was also told that she didn’t think I was capable of doing my job due to the fact that I do not have a vehicle to get around to my sites. Since then I have been trying to get a hold of the FMLA contact person to help me with this situation and I am not getting any answers.

Asked on August 5, 2011 Colorado


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Yes, your employer can legally do this. Pursuant to FMLA, if an employee is out on such leave then they cannot be fired or have a change in position/salary simply for being out. However, if their termination/job change is due to another reason unrelated to the one for which they were out, it is legal. In your case, according to your employer, your situation was caused by transportation issues. A legitimate reason for discharge, whether or not FMLA was involved.

The fact is that, an "at will" employer can hire/fire an employee for any reason or no reason at all. Accordingly, unless you had a union agreement or employment contract to the contrary, or this action violated company policy, or was the result of discrimination, you would appear to have no claim.  

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 AttorneyPages.com 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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