Managers find a number of ways to frustrate and aggravate HR, and FMLA restoration rules are the source of many of them. “I’ll keep the temp” is one of the most common challenges HR managers face
“I’ll Keep the Temp”
Here’s what happens: The manager’s employee goes out on FMLA leave. You provide a replacement, whether a temp from outside the organization or someone from the inside temporarily reassigned to fill in. The manager likes the new person so much that he or she says, “forget the employee who went out on leave—the replacement is much better, and I’m going to keep her.”
The manager’s pleased with the whole deal. It was annoying at first to have someone on leave, but now it’s turned out great. Until you have to say, “Not so fast. Employees on FMLA leave have rights, not the least of which is the right to reinstatement to the same or an equivalent position.”
With some exceptions, the law requires that employers provide each returning employee with the same position or an equivalent position.
The employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.
An “equivalent position” is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
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The employee must be reinstated to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. The returning employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and nondiscretionary payments.
What Is Equivalent?
It is not necessary that the employee be reinstated to the exact same job he or she left. However, the “equivalent” standard is more stringent than the standard of reinstatement into a “comparable” or “similar” position. The regulations explain that an “equivalent” position is one that is “virtually identical” to the employee’s former position in terms of pay, benefits, and working conditions.
An employer cannot permanently replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists.
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Further, an employee’s acceptance of a different, but allegedly equivalent, job does not extinguish the employee’s statutory right to challenge this placement decision.
For practical purposes, wherever possible, returning an employee to the same position he or she left is advisable because it avoids what may become protracted disputes with employees over the exacting “equivalence” standards that must be applied when an employee is offered a new job upon return from leave.
In tomorrow’s Advisor, practical examples of return to work scenarios, and an introduction to the “FMLA Bible.”