Legal Question in Medical Leave in New York

fmla question

I was laid off during my approved FMLA leave. They replaced my position soon after I went out and the Department Manager told me not to worry that they were trying to place that employee in another department so that I could have my job back. In the meantime I am out of a job because he has nowhere to go. My job would not have been eliminated before I went out, and if this other person had not been brought in I would have been able to return on the date my doctor had recommended. They brought him in not even a week after I left and there were no other layoffs other than mine in that department. Also, I was only out for a month. They are saying that this is not a violation because they do not have enough work for me to be brought back. But that is because they gave my position away. It seems unfair especially since I was verbally told not to worry that my job was safe. Please help thank you.


Asked on 7/20/09, 3:40 pm

1 Answer from Attorneys
John W. DeHaan DeHaanBusse LLP

Re: fmla question

Under the FMLA, once leave has been certified, then the employee is entitled "to be restored by the employer to the position of employment held by the employee when the leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment."

There are exceptions, however, so you should consult with an attorney that handles these types of claims.

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Answered on 7/20/09, 4:15 pm


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