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Small changes to returning worker’s job are OK

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in FMLA Guidelines,Human Resources

When employees return to work after taking leave under the Family and Medical Leave Act (FMLA), you must restore either their original job or an equivalent job with the same pay, benefits and other conditions of employment.

But the law doesn't mandate that you return the employee to the identical job. If the employee returns to duties that are substantially similar to those held before the FMLA leave, you've met your obligations.

Best bet: To avoid job-restoration disputes, don't introduce duty changes right after an employee returns from FMLA leave. When possible, hold off a couple of weeks or months to introduce such changes. That way, an employee can't say you reinstated him or her to a "different" job.

Recent case: Tina Mitchell, an assembly-line worker, took FMLA leave for depression. When Mitchell returned, the firm assigned her to her former department with the same pay and benefits, but with some additional tasks. Along with her original duties, the company now required her to use certain small hand tools, including a screw gun and a seal gun.

Mitchell filed an FMLA suit, alleging that the company didn't restore her to an equivalent position because it required her to use the new tools. A district court sided with the company, and a federal appeals court agreed.

Not only did Mitchell maintain her pay and benefits after taking leave, but her duties remained substantially similar. The 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, the FMLA says you can deny job reinstatement to "key employees" if their departure would cause a big financial burden to your company. To qualify as a key employee, a person's salary must be among the highest 10 percent your organization pays. To use this provision, you must 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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