Mid-leave status changes: Navigating compliance during FMLA leave

Q           We have an employee going out on short-term disability (STD) leave whose role will be transitioned from full-time to part-time. Can we change her status to part-time while she’s on STD leave while remaining compliant with Family and Medical Leave Act (FMLA) requirements, or should we wait until her return?

An employer may generally change an employee’s position from full-time to part-time while the employee is on FMLA leave but only if the change is wholly unrelated to the employee’s leave or medical condition and would have occurred regardless of the leave.

Leave is protected when it is sought and granted under the FMLA. This means that an employer may not discriminate or retaliate against an employee for requesting or taking leave under the FMLA. As such, employers should ensure they have well-documented nondiscriminatory reasons for any employment actions—including transitioning an employee’s role from full-time to part-time—taken against an employee on or returning from protected leave.

Under the FMLA, an employee returning from leave is ordinarily entitled to reinstatement to the same or an equivalent position. An “equivalent position” must generally involve substantially equivalent pay, benefits, and terms and conditions of employment. Reducing an employee from full-time to part-time during leave therefore creates risk because it changes the employee’s compensation and schedule and may appear inconsistent with the employee’s restoration rights.