It is a common misconception that the employer must keep the worker’s job open for her until she returns. This is not necessarily true. FMLA rules stipulate that the returning employee must be reinstated “to the same or an equivalent job." The caveat that the business must observe is the equivalency of salary, benefits and terms of employment.
For example, an employee who held the position of a supervisor or team lead must be given the same type of position and job title. If she worked during the day, it would not be in keeping with the spirit of the FMLA rules to place her into an open night shift position. The only way that this transfer may be made is upon the express request of the worker.
Of course, many a business recognizes that it is less expensive to hire a temporary worker or cross-trained employee to fill the vacancy. After all, to permanently fill the temporarily open position with a new-hire, who needs training and will undoubtedly experience a learning curve, will most likely exceed the 12 weeks of the worker’s anticipated absence. It is in a company’s best interest to reinstate the returning employee into her area of expertise.
Another point of contention is the application for maternity leave by a worker not eligible for FMLA coverage -- usually because she has not met the 12-month eligibility requirement. The federal government specifies that because of a separate piece of legislation -- the EEOC’s Pregnancy Discrimination Act -- this worker “may not be denied maternity leave if the employer normally provides short-term disability benefits to employees with the same tenure who are experiencing other short-term disabilities."
The seasoned human resources manager must undertake a records review to verify whether a precedent has been set, which would entitle a short-term employee to maternity leave privileges. Moreover, it is crucial to remember that the EEOC applies Pregnancy Discrimination Act provisions to companies with only 15 employees. The 50-worker cut-off that the FMLA specifies does not apply in this case.