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Does a nurse have legal recourse after her job was filled while she was on a leave of absence?

Dear Nancy,

I was put on an LOA for depression and anxiety in large part because of harassment from my director. I have contacted human resources twice regarding my desire to file a grievance against her. I was protected under FMLA for my leave for eight weeks. When I was released to come back to work, my physician wrote me restrictions for part-time work for three weeks as to not be overwhelmed at first. I normally work 12-hour OR shifts. My director said she could not accommodate me for those three weeks, which forced HR to put me on an extended leave, non-FMLA protected. Since then, my director posted and filled my job. I am now being told I have 30 days to obtain another position in the system or terminate my employment. I feel I am being treated unfairly because of wanting to file a grievance against my director. Do I have any legal recourse?



Dear Emily,

You may or may not have any legal recourse in this situation, and the best way to ensure a specific opinion concerning your options is to consult with a nurse attorney or attorney in your state whose area of practice is employment law and who works with employees. Some general comments can be made here about the FMLA and another possible federal law that might apply to you.

As you indicated, the FMLA allows an employee to take an unpaid leave of absence from work for a specified period of time for, in your case, a serious health condition that makes you unable to perform your job’s essential functions. After the leave, the employee is to be restored to his original job or to a position that is virtually identical in terms of pay, benefits and other terms and conditions of employment.

Not being able to resume your work full-time when your leave was over may bring the application of the Americans With Disabilities Act to your situation. You asked for an accommodation of part-time work, based on your physician’s judgment. Your depression and anxiety may or may not meet the requirements of a disability under the ADA. But if they do meet the ADA requirements, the accommodation request, if reasonable under the Act, should have been honored by your employer.

A third issue is, of course, the harassment by your director and your discussion with HR about filing a grievance against her. Although HR would be expected to keep this discussion confidential, it may not have been. Or, your director simply ignored your request because of the personality conflict between you. Personality conflicts among supervisors and employees are not generally legally actionable, but if the conflict violates an employee’s rights under a specific law or laws, then the conflict and its resulting behavior need to be evaluated carefully.

Do seek the consultation with an attorney of your choice as soon as possible.



Nancy J. Brent, RN, MS, JD,’s legal information columnist, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. To ask Nancy a question, email [email protected]

By | 2015-08-11T19:46:08-04:00 August 12th, 2015|Categories: Nursing Careers and Jobs|0 Comments

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Barry Bottino
Barry Bottino is a freelance writer and editor who has more than 25 years of experience at various newspapers and magazines.

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