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| Issue: |
XYZ Corp. is a computer services company whose business is heavily dependent on a handful of key clients, one of whom has chosen not to renew its contract with XYZ. The resultant lack of work means that XYZ will have to downsize by three positions. Traditionally, employees are let go strictly on the basis of seniority. But one of the three employees with the least seniority is out on family and medical leave. Must XYZ skip over the employee on leave and downsize the employee with the next least seniority? |
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Answer: |
No. The Family and Medical Leave Act does not grant "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." Because the employee would have been laid off during the leave period if the employee had been working, the employee may be laid off during the course of taking FMLA leave. XYZ Corp. would not have a responsibility to continue FMLA leave, maintain group health plan benefits or restore the employee to the same or an equivalent position after the layoff unless there were other continuing obligations such as under a collective bargaining agreement.
Source: 29 CFR Section 825.216(a) |
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