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Dear ReWorker,

We have just over 50 employees, so we are subject to FMLA. An employee had a baby a couple of months ago and went on maternity leave. We were all 100 percent sure that she would quit to stay home with the baby. Her husband has a good job and her sisters are stay-at-home moms. So, we started working on replacing her. We hired her replacement and she's great! Better than our former employee. I just got an email from the new mom saying, "My maternity leave ends in two weeks, and I'm excited to get back to work!" Yikes. What do I do now?

Sincerely,

Jumped the Gun

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Dear Jumped the Gun,

Remember back in Toy Story when Woody and Buzz Light Year are lost and everything is a disaster and Woody is freaking out? Buzz says "Sheriff, this is no time to panic," to which Woody responds "This is the perfect time to panic!" Yeah, you're Woody.

This is a bad situation to be in, and exactly why you should never assume that a woman is not going to come back from maternity leave.

So, here's the law: You have to bring this employee back and you have to either give her the original job back or something substantially similar. That means that it needs to be the same pay and similar responsibilities. So, if she was a school teacher, you can't just send her to work in the cafeteria. If she was an accountant, you can't send her to be the receptionist. That's what you have to do. The problem, now, is with the person you hired to replace her.

If you have room in your organization to absorb another person, that's ideal. You said she's awesome, so you don't want to lose her. Depending on your business, you may expect someone to quit in the near future anyway, and perhaps she could transition into that person's job. I have no idea, but if you can do that, it's the best plan.

But if there's no way your business can support an extra employee, someone has to go. And that someone cannot be the woman who returned from FMLA. Who should it be?

The new hire is the obvious choice, but boy is that sleazy on your part. She probably left another job to come here and is a great performer.

You could look at finding your lowest performer and terminate that person and then move people around to put everyone in the best possible fit for them.

You could quit yourself, since you caused the problem. (Oopsie!) That probably isn't your favorite option, but as long as we're talking fairness, that would be the most fair option.

Chances are, though, that with a 50+ person business, you can expect two to three people to quit within the year, and so if you could possibly absorb the extra salary for that time period, that is what I would recommend. If it means the people who made this decision don't get bonuses, so be it.

And a note of caution: The new hire is better than the new mom. Got it. But, if you punish her in any way or terminate her for anything short of gross misconduct, she'll sue for FMLA retaliation. It will be pretty easy for her to show that had she not taken the maternity leave, she'd still have her job.

Your ReWorker,

Suzanne Lucas, Evil HR Lady

Photo: Creative Commons