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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7326
Experience:  Significant experience in all areas of employment law.
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I have been employed for 2 years with LbSSLC of Texas.

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I have been employed for 2 years with LbSSLC of Texas. I am disabled and hadnt had any issues with accommodation, mainly due to the fact that the job fits perfectly around my physical limits. I did have medical complications that resulted in hearing loss on the left and was able to get assistance through DARS in my own. I good very sick with further complications abd had to take fmla and they granted me leave without pay until august 31st. I went through much difficulty finding a doctor to treat me and was blessed to finally find a treatment that made it possible for me to return to work. in the mean time
they hired another person for my position, which it's the only
position like it there. so when I wanted to return they made me jump through a few hoops and said that they couldn't take me back unless the doctor released me shyly restrictions. I and the doctor had only mentioned a possible accomadation, not restriction, based on my job functions. I returned and found a few more strange things happening like in CPR refresher I had always been able to request to do it elevated on a table, but when I asked I was ignored. I was only able to do it on the table because one of the physicians employed hurt her back, so they allowed the entire class to do it. then I was requested to do lifting refresher today which had not been required previously. I went and the refused the lift a person. I also this am, went ahead and updated my disability status to disabled, which I hadn't done prior because it had been unnecessary. so at approx 4:30 pm, my supervisor brings me into the office to tell me that they have to move me to another department because she didn't have the budget for two PNMT RN positions in her department. so she is giving my job to the women that has been doing it for 3-4 months, and moving me.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. I am very sorry to hear about the difficulties you are encountering following your FMLA leave.

Pursuant to the FMLA, your employer is required to return you to the same or an "equivalent" position following your FMLA leave unless it can demonstrate a reason unrelated to your absence (e.g. financial necessity) for the change.

29 CFR 825.215(a) provides the definition of what constitutes an "equivalent position." That section states:

"An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority."

The fact that your employer is transferring you to another department is not in itself against the law. However, if the transfer is to a non-equivalent position, that would typically constitue a violation of the FMLa and give rise to a claim for damages. Moreover, pursuant to McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, the employer bears the burden of proving that the job transfer had nothing to do with your absence from work, meaning that so long as you can show the new position is "non-equivalent," a presumption of an FMLA violation automatically arises by operation of law.

In addition to your rights under the FMLA, you have a right to "reasonable" accommodations under the ADA. What is "reasonable" is a question of fact, meaning it must be decided on a case-by-case basis in consideration of the unique circumstances of each situation. However, unless your employer can demonstrate that the accommodations you are requesting and your continuing in your present position will create an undue hardship on the company, then they cannot simply transfer you.

Ordinarily speaking, the best first course of action under the circumstances is a letter advising your employer that their decision to transfer you to a non-equivalent position constitutes a violation of your FMLA rights and perhaps also a violation of your right to "reasonable" accommodations under the ADA. This letter can be drafted by your self, or by an atotrney for a $200-300 flat fee. If the letter is drafted by an attorney, your employer may be more inclined to take it seriously, so the initial investment in that legal service may very well pay off.

To locate an attorney who can assist you, see here: https://www.mytela.org/TE/index.cfm?event=showapppage&pg=members&configid=157&showfullpage=1

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7326
Experience: Significant experience in all areas of employment law.
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