If you have an employee who is taking leave under the Family and Medical Leave Act, you may be wondering if you can hire a temporary or permanent replacement for them.
The answer depends on a few factors, including the nature of the employee’s leave and your company’s policies. You must be cautious in this situation to avoid potential legal troubles.
The Family and Medical Leave Act
FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year for the following family and medical reasons:
- Birth and care of a newborn child
- Placement of a child for adoption or foster care
- Care for an immediate family with a serious health condition.
- Treatment for a serious health condition
FMLA also allows eligible employees to take up to 26 weeks of leave in a single 12-month period to care for an injured or sick service member if the eligible employee is the service member’s spouse, child, parent or next of kin.
Hiring of a replacement
If an employee is taking intermittent leave, you may be able to hire a temporary or part-time replacement. However, you must be sure that the replacement does not work more hours than the employee taking leave would have worked. If an employee is taking continuous leave, you may be able to hire a temporary, full-time replacement.
Return of the employee from leave
You must be careful not to permanently replace the employee because when he or she returns from leave, you must either give the original employee the same job back or offer an equivalent position with the same pay and benefits. Not doing so would put you in violation of the FMLA, which could lead to legal action against your company.
Wrongful termination
If you hire someone to replace an employee who is on FMLA leave and then terminate the replacement employee when the original employee returns, the replacement employee may have grounds to sue you for wrongful termination. The replacement employee may argue that the termination was in retaliation for the original employee exercising rights under the FMLA.
To avoid potential legal issues, it is important to carefully consider your staffing decisions when an employee is on FMLA leave. If you hire a replacement for an employee on FMLA leave, you should ensure that the replacement is aware that the position is temporary and may end when the original employee returns.