How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ray Your Own Question
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 41597
Experience:  30 years in Employment law
Type Your Employment Law Question Here...
Ray is online now
A new question is answered every 9 seconds

FMLA: can an employer post you current position while

Customer Question

FMLA: can an employer post you current position for hire while you are still under FMLA?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ray replied 2 years ago.
Hi and welcome to JA. I am Ray and will be the expert helping you tonight.
Your employer may not terminate you if you are on FMLA leave as long as you don't go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar.
So it is legal for them to post it here under the FMLA, they can hire someone for your current job but they cannot terminate you if you report to work.They can offer you a substantially similar job here not necessarily your current position.
Substantially similar means the following:
Here an equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.
If an employee is no longer qualified for the position because he or she is unable to attend a necessary course, renew a license, fly a minimum number of hours, etc. as a result of the leave, the employee should be given a reasonable opportunity to fulfill those requirements upon return to work.
Equivalent pay includes a bonus or other payment made to employees.
In your case it is possible they post and hire for your job but they have to offer you an equivalent substantially similar job with pay , working conditions, etc.
They haven't violated the law yet but if they don't offer you a substantially similar job when you return they are in violation here.
Here is the DOL website just in case..
More about filing if they do cross the line.
I appreciate the chance to help you.I hope you are able to return to work here with your employer.Please if you have more follow up just ask it is never a problem.