If you own a small business or run an HR department, you've probably encountered this issue. An employee -- let's call him Gary -- takes leave to have surgery and post-operative physical therapy. As you probably know, the federal Family and Medical Leave Act guarantees qualified employees like Gary the right to take a certain amount of time off for this purpose without losing his job.
Naturally, your company allowed the leave. Gary's position is important, so you transfer another employee, Jane, to handle his work in the meantime. As it turns out, Jane is fantastic at the job. Everyone agrees that Gary had done a fine job, of course, but Jane is more efficient.
When Gary returns after a month's leave, you decide to keep Jane. You know that Gary's job was guaranteed by the FMLA, so you explain the situation and tell Gary he will now be taking Jane's old position with a small pay cut.
Is that legal? It may be an open question
A good way to look at the question is to consider what would happen if Gary sued the company for violating the FMLA's job protection provision.
Gary would tell the court that before he took leave he was well-liked in his position. He might have job reviews that show he was performing his job well. When he returned, from his point of view, he was demoted and given a pay cut.
To successfully counter Gary's argument, you would need substantial documentation that your decision had nothing to do with Gary having taken FMLA leave. To convince a judge your decision was not prompted by his FMLA, you would need to demonstrate, with evidence, that you would have made the same decision regardless -- and that could be hard to do.
When an underperforming employee takes FMLA leave, close that question
In a case like Gary's, the best thing to do is return him to the same job, or a very similar job at the same level and rate of pay. Since he had been performing well, he might be able to learn Jane's efficiency tricks.
When an underperforming employee takes leave, however, it is crucial to carefully document the performance issues and what actions you had been planning to take. If you plan to discipline, demote or discharge this employee upon his return, you had better be prepared to prove that action was already in the pipeline.