Provided by: Jennifer Kirschenbaum, Esq.
November 9, 2021
Question:
Hi Jennifer,
We have an employee out on PFL and I was wondering if we have to provide her with the same salary and hours when and if she returns. We have found someone to work in her absence and she is doing a terrific job.
Thank you in advance!
S
Answer:
Any employee out on job protected status, whether Paid Family Leave or FMLA or Disability within their "job protection" timeline is legally entitled to return to the substantially the same situation they left - same time, same hours, same pay. Changes to position may be construed as a "constructive termination", and may create liability for the employer. Now, if the employee does not return once job protection has elapsed, the position may be filled and the employee will have given up the position. It is really important to track the day an employee starts leave, the time employee has job protected status and when job protected status elapses. Whether or not you have hired a preferred replacement is not a factor related to potential liability.
