The work is gone, but the employee’s on leave—Now what?

Sometimes when downsizing, employers decide to eliminate a role that’s no longer needed. However, if the employee who fills the role is currently on medical leave, can the employer terminate the position right away, or does it have to wait until the employee returns from leave?

Rules for downsizing

A downsizing employer can generally eliminate a position occupied by an employee on protected medical leave as long as (1) the elimination is unrelated to the leave and (2) the employer complies with applicable reinstatement requirements.

Leave is protected when sought and granted under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), or another state or federal statute providing for leave. While these statutes generally require reinstatement after leave, they also make exceptions for business necessities, like those involved in downsizing.

Eliminating a position during FMLA leave

Under the FMLA, for example, employees on leave are normally entitled to reinstatement to their pre-leave (or an equivalent) position when their leave ends. However, the FMLA’s “no greater rights” provision waives this requirement for employees laid off during FMLA leave, including because of position eliminations.