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Your best policy under the FMLA is to
reinstate employees returning from leave to their same positions.
But, what if you need to reinstate them to an “equivalent” position?
Q:
We have an employee out on FMLA leave and would like to hire someone
to fill the position now. Can we reinstate her to a different
position when she is ready to return? We will have a position
available that pays the same rate and has similar job duties, though
she would have less contact with our customers and thus would be
eligible for a slightly smaller bonus. In addition, the job is
located 20 miles from her present office and includes two evening
shifts a week that she did not work previously.
A:
The Family and Medical Leave Act (FMLA) requires you to reinstate
employees returning from FMLA leave to their former position or
another position with “equivalent employment benefits, pay, and
other terms and conditions of employment.” Thus, if you cannot
restore the employee to her regular job, the job you are proposing
to reinstate her to must be an “equivalent” job under the FMLA.
According to the
FMLA regulations, found at 29 C.F.R. §825.215, an equivalent
position is one virtually identical to the employee’s former
position in terms of pay, benefits, and working conditions,
including privileges, perquisites, and status. The new position
must involve the same or substantially similar duties and
responsibilities, requiring substantially equivalent skill, effort,
responsibility, and authority.
The FMLA
regulations provide further guidance and indicate that the employee
must be reinstated to the same or a geographically close worksite
relative to where the employee previously had been employed. In
other words, she should not have a significant increase in her
commuting time or distance. In addition, the employee is ordinarily
entitled to return to the same shift or the same or an equivalent
work schedule.
Finally, the
regulations indicate that the employee must have the same or an
equivalent opportunity for bonuses, profit-sharing, and other
similar discretionary and non-discretionary payments. Note,
however, that any de minimis or intangible changes to the employee’s
job will not be considered violations of the FMLA.
So, for example,
in Smith v. East Baton Rouge Parish School Board, 453 F.3d 650, (5th
Cir. 2006), the court determined that an employee was properly
reinstated to an equivalent position when she returned from FMLA
leave. The employee was offered the same salary, similar accounting
responsibilities, and similar title and job description. The fact
that she was no longer required to travel to various schools in the
district to provide training and support was a de minimis,
intangible difference that did not violate the FMLA.
But, in Cooper v.
Olin Corp., 246 F.3d 1083 (8th Cir. 2001), the court explained that
“restoration of salary, title, and benefits does not necessarily
constitute restoration to the same position (as required by the FMLA)
when the job duties and essential functions of the newly assigned
position are materially different from those of the employee’s
pre-leave position.”
Your proposed job
switch raises several red flags and looks risky since it includes a
change in location, change in work hours, and the potential for
decreased bonus payments. As a result, you should consult with an
attorney or the federal Department of Labor for additional insight
into whether your specific example or fact situation would meet the
FMLA’s reinstatement requirements.
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Personnel
Policy Service, Inc.
