When employees return from, you're required to restore them to the same position or a comparable one. That requirement might make you hesitant to make any changes to employees' jobs or conditions of employment while they're out on leave.
However, a new court ruling shows that you can make minimal changes to a job description without worrying about FMLA violations.
Just make sure that the new position would be considered "equivalent" to the position that the employee held before going on leave.
The new position should be practically identical to the old one in terms of pay, benefits, working conditions (including perks and status). The new position should also require the same amount of skill, effort and responsibility, plus it should carry as much authority as the old job.
Recent case: While Phyllis Smith was on, the East Baton Rouge Parish School Board reorganized her department. Her title as assistant supervisor of school accounts stayed the same, but her duties changed. Instead of visiting schools and meeting with principals, she now audited the schools' books from a central office.
Smith filed an FMLA suit, arguing that her new in-office auditing job wasn't equivalent to the old job. The 5th Circuit disagreed.
Since Smith's salary and ultimate responsibility didn't change, the court concluded that the changes were de minimis, or inconsequential. (Smith v. East Baton Rouge Parish School Board, No. 04-31199, 5th Cir., 2006)
Final tip: Document why you made the job description changes. Always articulate a good business reason, so it doesn't look like you're punishing the employee for taking leave.
- Give staff at least 15 days to obtain FMLA certification
- Scrupulously track disciplinary history to combat FMLA-interference lawsuits
- Retain benefit eligibility after FMLA leave
- OK to consider intangible qualities when choosing applicants
- No separate emotional distress claims if conduct is covered by IHRA