Leave Policy/Compliance

FMLA: Is a More Unpleasant Job Still an Equivalent Job?

In yesterday’s Advisor, we discussed the common issue of “I don’t want to take back the person on FMLA; the temp is much better.” In today’s issue, some job restoration scenarios, and an introduction to the “FMLA Bible.”

FMLA Restoration Example 1

John is a bank teller. He works at a bank branch 20 miles from his home. The branch is in a suburban neighborhood that allows John to do shopping or to jog during his lunch break. Upon return from leave, John is reassigned to a bank branch in the city. Geographically, the branch is 20 miles from John’s home. All economic terms and conditions of employment are identical.
The commute into the city, however, takes twice as long as his former commute because of traffic. Further, the new branch is located in an area with very little shopping, and jogging at lunch is impossible. Are the two teller positions equivalent?

John would argue the positions are not equivalent. Conversely, the bank would claim the two jobs are identical. Questions like this ultimately must be decided on a case-by-case basis. Courts reviewing similar cases, however, have found that factors such as a commute that takes longer because of traffic differences weigh in favor of a finding that the positions are not equivalent.

FMLA Restoration Example 2

Ralph is an executive secretary. His boss is Sally, is the company’s chief financial officer. Ralph goes on leave and is restored to an executive secretary position working for Bob, the company’s comptroller. Bob is short-tempered; Sally, on the other hand, was always very nice to Ralph. Are the two positions equivalent? Statements such as, “He’s not nice to work for, but she is very nice” are too highly subjective to be used in trying to establish equivalency. To come to any other conclusion would enable the employee to determine equivalency based on his or her own subjective perceptions.

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Thus, the regulations state that equivalent working conditions do not include intangible or unmeasurable aspects of the job. These two positions probably would be found to be equivalent.

FMLA does not prohibit an employer from accommodating an employee’s request to be restored to a different shift, schedule, or position that better suits the employee’s personal needs on return from leave, or to offer a promotion to a better position. However, FMLA prohibits employers from inducing an employee to accept a different position against the employee’s wishes.

It’s an almost overwhelming task to keep up with FMLA, especially with the recent, far-reaching changes. And then, you have to turn around and marry all that with state law provisions. Good news! BLR’s editors have gone the extra mile to get your comprehensive compliance guide up to date.

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  • Reasonable accommodation
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