Hard issue: Give mom job back after leave?

Company could face problems with anti-bias statutes

Can They Do That?

Your Money

May 02, 2004|By Carrie Mason-Draffen

We are a company of about 30 people. One of our employees is on maternity leave. When she returns, do we have to reinstate her to the job she held before the leave? The answer is crucial because her replacement does a much better job, and we would like to keep her in the position. Can't we just offer the returning employee a job in another department?

Because of your company's size, your question doesn't have easy answers. You're too small to fall under the jurisdiction of the federal Family and Medical Leave Act, which covers companies with at least 50 employees. That act would require you to return the employee to the same position.

On the other hand, you do fall under other anti-discrimination statutes, such as the federal Pregnancy Discrimination Act or human rights laws.

Pregnancy is considered a disability.

Those laws seek to ensure that pregnant women are treated the same as any other worker on disability.

Generally speaking, if your longtime policy and practice is to reassign employees after a disability leave, you can generally let policy dictate your decision. But there are some pitfalls.

Glenn Franklin of Franklin, Gringer & Cohen in Garden City, N.Y., points out that an employee could sue, claiming that the company is reassigning her because she took time off.

She could claim that while she was good enough to do the job before the leave, the company now finds fault because of the leave.

Your best defense, Franklin said, is documentation that shows that your company is treating her as it would other employees who were on disability leave. But Franklin, who advises companies, recommends that his clients offer employees coming off disability their old jobs back to avoid claims of disparate treatment.

Whatever your decide, you should have your policy and practice spelled out in an employee handbook, Franklin said.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoney@tribune.com.

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