Legal Question in Medical Leave in Oregon
OFLA - Job Protection and return to former position
I just returned to work from my FMLA/OFLA protected leave of absence after having my second child. While I was on leave, I was told that my former position was being given to a co-worker of mine and I was getting a new position (although they have the same title they are very different). They also gave her my work space as well, while I was on my LOA. My understanding is that I was supposed to be returned to my exact position at the time I returned, unless it had been eliminated. Is this legal for my employer to do?
1 Answer from Attorneys
Re: OFLA - Job Protection and return to former position
Under Oregon law, an employee who takes Family Medical Leave, including for pregnancy/child birth, is entitled to be reinstated to the same position if it still exists. Under federal law (FMLA), the reinstatement obligation is to a "substantially similar" position. The employer is entitled to take whatever action it can prove it would have taken had the employee not been on leave, such as elimination of the position, but absent an independent provable basis the employee has a right to return to the former position, not a different one.
The above does not constitute legal opinion and is offered for the purposes of discussion only. The law differs in every jurisdiction, and you should not rely on any opinion except that of an attorney you have retained, who has a professional duty to advise you after being fully informed of all the pertinent facts and who is familiar with the applicable law.
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