HR MATTERS E-TIPS
THIS WEEK’S E-TIP: FMLA Reinstatement Rules Q&A
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK’S E-TIP: FMLA Reinstatement Rules Q&A 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? |
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THIS WEEK’S E-TIP: FMLA Reinstatement
Rules Q&A 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. (Download free Leaves of Absence model policy.) 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. |
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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. (Download free Leaves of Absence model policy.) 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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Subscribers to the
Personnel Policy Manual (print/online) and HR Policy Answers on CD can find information on the FMLA reinstatement requirements in Leaves of Absence, Chapter 703, note 42. Not a subscriber? If you would like to order one of our policy chapters, go to: http://www.hrpolicyanswers.com. If you have any questions, please call us at 1-800-437-3735. We'll be happy to help you. |
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