- November 27, 2018 at 2:39 pm #287640
I am a manager of a small business (4 employees) and an employee was on maternity leave, delivered and was due to return 8 weeks after delivery. She had a return to work date but on that date stated that she was taking extended FMLA for an additional 6 weeks off. This is a small business and she had actually been off 4 months prior to delivery so I have had to hire additional staff to replace her during her leave. The question is when she comes back do I have to have her back as the full time employ that she was or am I legally able to cut her hours to what fits best for the business.November 27, 2018 at 3:59 pm #288148
Bless your heart for allowing such an extended FMLA leave. Do you have to do it? The answer is no. The reason is that FMLA at the federal level applies only to employers with 50 or more employees. I’m not aware of any state that requires an employer with only 4 staff members to offer FMLA. Here’s more on that along with other federal labor laws. https://fitsmallbusiness.com/federal-labor-laws/
Therefore, she is not eligible for FMLA leave at all due to your company size. And even if she were, the terms would have been violated by hear failure to return after 4 months. Therefore, you do not need to rehire her at all, and certainly, don’t need to guarantee her any particular job or hours. Do what’s best for your business. At this point, you may want to terminate her employment for failure to show up on her return date, but let her know that she’s eligible for rehire (should you have a position open at the time) if she wants to come back at a later date. Here are tips on that. https://fitsmallbusiness.com/how-to-fire-an-employee/
Keep in mind that by keeping her on staff, you’re setting yourself up for future issues — for instance, if another person wants to take leave, you’ll have to offer them the same that you offered to this person, or they may claim ‘discrimination’. My suggestion would be to get a leave policy in place ASAP and have it reviewed by an attorney to avoid future issues as your business grows.
Good luck to you!
Laura, HR Staff Writer
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