Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. I took 10 weeks of FMLA leave off from work so I could care for my teenage son, who was injured in a serious car accident. When I returned to work, I was given a completely different job. Can employers do that?
A. Depending on the size of the employer and how long an employee has worked for it, the Family Medical Leave Act (FMLA) may allow him or her to take up to 12 weeks of unpaid leave if, among other reasons, he or she needs to care for an immediate family member suffering from a serious health condition. After completing or exhausting his or her FMLA leave, the employee should be returned to the same position he or she held before going on leave.
Alternatively, the employee should be given an “equivalent position” that has equivalent benefits, pay, and other terms and conditions of employment as his or her old position. Additionally, this equivalent position should “involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority,” according to U.S. Department of Labor (DOL) regulation.
Unable to let a position sit vacant for the period an employee is on FMLA, employers will often fill it with someone else or split the position’s duties among other employees. However, these actions do not give the employer a viable excuse to deny reinstatement; instead they often impose on it the burden of establishing an equivalent position for the person returning from FMLA leave. While a returning employee may not be thrilled with having to assume a new position, “an employee does not have an absolute entitlement to restoration of his pre-leave position after taking FMLA leave,” the 4th U.S. Circuit Court of Appeals said in Csicsmann v. Sallada (2006).
What qualifies as an “equivalent position” is often a sticking point between employees and employers. Keep in mind, equivalent means “virtually identical” — not actually identical — and the reinstatement requirement does not extend to “de minimis [minor], intangible, or unmeasurable aspects of the job.” Factors such as a position being less prestigious and less visible than the pre-leave position “are the very intangible aspects of the position appropriately excluded from an equivalency determination,” the 4th Circuit noted in Csicsmann.
If the employer reinstates an employee returning from FMLA to a position in a different geographic location that requires more commuting in terms of time or distance, such a reinstatement would likely not be considered equivalent. Even if the employee is transferred to a different — yet equivalent — geographic work location, he or she should return to the same shift or an equivalent work schedule. Opportunities for bonuses, profit-sharing and other similar discretionary or non-discretionary payment must likewise be the same as or equivalent to those of the pre-leave position, according to the DOL regulation.
Employees who have been reinstated to different positions upon their return from FMLA leave should immediately consult with an employment law attorney. An attorney can prepare for them an FMLA interference lawsuit and represent them in federal court.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.