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FMLA: Reinstating Workers After Leave

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

When an eligible employee returns from FMLA leave, the employer must restore him or her to the same position or an equivalent one with equivalent benefits, pay and other terms and conditions of employment. The new position must involve the same or substantially similar duties and responsibilities and equivalent skill, effort and authority.

The FMLA doesn’t clearly specify what privileges, perquisites and status qualify as “conditions of employment.” The meaning of “substantially similar duties and responsibilities” is murky, as is the phrase “substantially equivalent skill, effort, responsibility and authority.”

Consider the example of a manager who supervised 12 employees before taking FMLA leave. If, when she returns, she has responsibility for only four employees, she could argue that she no longer has the same authority. Eventually, the courts will come up with the precise definitions of these terms. But unless you like the idea of being a test case, your best bet is to hold the worker’s job during FMLA leave.

If an employee falls behind in his skills during his leave, you must give him a “reasonable” chance to catch up when he returns. The regulations don’t say whether you have to pay for such training, but presumably if you paid for this type of training before the employee went on leave, you must pay for it when he returns.

More important: You must address any physical or mental impairments the employee has upon his return, including any continuation of the health problems that sent him on FMLA leave in the first place. As the FMLA points out, provisions of the ADA take over and then would govern your obligations.

Returning employees are entitled to any cost-of-living increase granted other employees during their absence, as well as any other unconditional pay increase. But you don’t have to give a raise based on seniority, length of service or work done. If you have a policy to grant such increases to other employees on unpaid leave, you have to do the same for those on FMLA. The equivalent-pay provision includes restoration of any shift differential or regular overtime. If an employee worked an average of 10 hours overtime before leaving, he or she’s entitled to the same overtime upon returning to work.

Additionally, you can’t move returning employees to a distant work site, although you can assign them to a “geographically proximate” one. If you closed a site during their leave and moved the work force to another city, you must offer them a transfer under the same conditions offered to other employees.

Don’t tamper with benefits

Make sure you don’t tamper with returning employees’ benefits. They’re entitled to everything everyone else receives: group life, health and disability insurance, as well as sick leave, annual leave and educational benefits. Pensions are particularly inviolate.

Because you can’t require returning employees to take a physical exam or undergo a waiting period to resume insurance coverage, you may have to modify benefits programs so that those employees will be eligible upon their return. Your best course of action may be to pay for their benefits, even if they defaults on premiums, and then try to get your money back later.

Although you don’t have to grant employees additional benefits and seniority during their leave, you’re obliged to count leave time as work time for pensions and any other retirement program you have. If a vesting date falls during leave time, you must treat the date as if the employees had been working. They’re entitled to the same opportunity for bonuses, profit sharing and similar discretionary and nondiscretionary payments as workers who remained on the job. FMLA leave can’t be considered as an absence for disciplinary reasons or for purposes of attendance bonuses.

Caution: When an employee indicates that he or she wants to return to work, the employer must obtain a medical release or clarify any qualifications. When obtaining a medical release, you should request only a description of the employee’s functional limitations. Receiving any other information may be perceived as an invasion of privacy and subject your organization to litigation.

In addition, any policy requiring an employee to be a certain percent healed before returning to work will get you into trouble. The proper inquiry should be whether the employee can do the job after you provide reasonable accommodations.

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