Issue: As a new ruling shows, you can make minor changes to an employee's job while he or she is on.
Benefit: Increased staffing flexibility, decreased liability under.
Action: Be sure the job is "substantially similar" to the one the employee left.
When an employee returns to work after taking FMLA leave, you must restore him or her to either the original job or to an equivalent job with the same pay, benefits and other conditions of employment.
But the law doesn't require you to return the employee to the identical job. If the job's duties are substantially similar to those the employee performed before the FMLA leave, you've met your legal obligations.
Recent case: Assembly-line worker Tina Mitchell took FMLA leave for depression. Upon Mitchell's return, the employer assigned her to her former department with the same pay and benefits, but with some additional tasks.
Mitchell filed an FMLA suit, alleging that the employer didn't restore her to an equivalent position. A district court sided with the employer, and a federal appeals court agreed.
Not only did Mitchell maintain her pay rate and benefits after taking leave, but her duties remained substantially similar. FMLA allows employers some flexibility to implement minor changes to the job. (Mitchell v. Dutchmen Manufacturing Inc., No. 04-1365, 7th Cir., 2004)
Final note: Remember, FMLA says you can deny job reinstatement to "key employees" if their departure would cause a big financial burden to your organization. To qualify as a key employee, a person's salary must be among the highest 10 percent your organization pays. To use this provision, notify employees of their "key employee" status at the time they notify you of their leave, or when their leave begins.
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