If I went on intermittent FMLA and was demoted less than 3 weeks later, is this legal?

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If I went on intermittent FMLA and was demoted less than 3 weeks later, is this legal?

I have been with my workplace for 2 years now. From day one, I let them know of my health condition that would prevent me from participating in certain duties. They were, originally, very good with keeping me accommodated. Unfortunately as health grew worse, and without insurance, my performance began to fall. I finally got to see a doctor and went on intermittent FMLA which was approved for 480 hours 2 weeks ago. Today, I was demoted due to performance based staffing cuts to a position that I cannot fulfill with the limitations of FMLA, and a paycut. Can they legally do this?

Asked on April 9, 2012 under Employment Labor Law, Oklahoma

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The issue is whether your performance problems are real, as you imply in your question (e.g., health conditions would preclude certain duties) or are a pretext for illegal retalition. An employer may not retaliate against, or punish, an employee for taking FMLA leave; however, the Family and Medical Leave Act law does not obligate employers to retain or pay employees for  jobs they cannot effectively do. If you were having legitimate performance issues, you may be demoted--FMLA does not excuse poor performance. If you did not have performance issues and feel you are being punished, and that the alleged performance problems are just a cover or pretext for that, then you should speak with an employment  law attorney to review the situation in greater detail.


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