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.