HR Management & Compliance

Mastering Tough FMLA Issues: Satisfying Employee Job Restoration Rights

This article series addresses some of the most confusing real world problems surrounding the Family and Medical Leave Act (FMLA). In the last installment, we focused on substituting paid leave for FMLA leave. In this article, we’ll look at restoring an employee’s job once they return from leave.

Return from leave

An employee returning from FMLA leave must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. The goal is to make sure the employee returns from FMLA leave in the same position he would have been had he not taken the leave.

It’s always preferable to return the employee to his original job. If that’s not possible, the employee is entitled to an equivalent job—one that is identical to the former position in pay (with bonuses and profit-sharing), benefits (e.g., group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions), working conditions, privileges, perquisites, and status.

For example, if the employee worked an average of 10 hours of overtime per week in her old job, she’s entitled to return to an equivalent position that provides the same amount of overtime. In addition, it must involve the same or similar duties and responsibilities that should entail substantially equivalent skill, effort, responsibility, and authority.

For a day-shift employee returning from FMLA leave, the same job but on the night shift may not be an equivalent position. Different courts have resolved the issue differently, so the best approach is to play it safe and give the employee her old job on her old shift.

It may be sufficient to reinstate an employee returning from FMLA leave to the same job but at a worksite that’s “geographically proximate” to her old job. A site is geographically proximate if it doesn’t “involve a significant increase in commuting time or distance” compared with the previous worksite.

Note that in joint employment situations, the primary employer has primary responsibility for job restoration. The secondary employer is responsible for accepting the employee returning from leave in place of the replacement employee if the secondary employer is still utilizing an employee from the temporary agency and the temp agency still wants to assign the employee to the secondary employer.

Pay Raises, Benefits, Perks, and Awards

The employee is also entitled to any “unconditional” pay increases that may have occurred during his FMLA leave period, such as cost-of-living increases. Pay increases based on seniority, length of service, or work performed aren’t required unless you provide them for other employees on unpaid leave.

As mentioned above, the most recent U.S. Department of Labor regulations allow employers to deny a “perfect attendance” award—and other awards contingent on achieving a given result—to employees who do not have perfect attendance or didn’t achieve the result because they took FMLA leave—but only if employees taking non-FMLA leave are treated the same way.

An employee’s use of FMLA leave cannot result in the loss of any employment benefit that he earned or was entitled to before using FMLA leave, nor be counted against him under your attendance policy (as opposed to the bonus policies discussed above). This means that if you have a policy that allows you to discipline an employee for excessive absenteeism, you cannot count FMLA absences for disciplinary purposes.

Light Duty and Job Restoration

In accordance with the general rule that employees may not waive future FMLA rights, the new FMLA regulations provide that an employee doesn’t waive any future rights—including the right to job restoration—by accepting light-duty work while recovering from a serious health condition.

Light duty is not considered FMLA leave and cannot be counted against the employee’s FMLA entitlement. When an employee formerly on FMLA leave takes a light-duty job, his right to reinstatement is held in abeyance and ends at the end of the applicable 12-month FMLA year.

When a voluntary light-duty assignment ends, the employee has the right to be restored to the position he or she held at the beginning of the FMLA leave, or to an equivalent position, so long as the employee is able to perform the essential functions of the position and the leave year has not expired.

If the voluntary light-duty assignment ends before the employee is able to perform the essential functions of his or her position, the employee may use the remainder of the FMLA leave entitlement. Assuming that the employee is able to perform the essential functions of the position at the end of his or her FMLA leave, the employee is entitled to return to the same position or to an equivalent position at the end of his or her FMLA leave.

How do you handle employees who don’t have any rights after returning from leave? We’ll cover that issue in the next installment.

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