Employee wants a different schedule after FMLA leave
It happens. An employee takes leave under the federal Family and Medical Leave Act (FMLA), and when they return, they want a different position or schedule. If, for example, an employee takes FMLA leave for the birth of a child and, because the employee’s personal situation has changed, the employee wants to change schedules.
Employers might wonder if the FMLA requires them to accommodate such a request, or whether employers can make a schedule change at their own discretion.
What the FMLA says about work schedules
When FMLA leave ends, employees are entitled to return to the same position they held when leave began, or to an equivalent job with equivalent benefits, pay, and other terms and conditions of employment.
The FMLA does not prohibit employers from accommodating an employee's request to be restored to a different:
- Shift,
- Schedule, or
- Position.
If an employee wants a change that better suits the employee's personal needs on return from leave, or to seek a promotion for a better position, that’s okay. Employers, however, are not required to honor those requests. They may deny such a request and return the employee to their original position.
Employers may not, however, induce an employee to accept a different position against the employee’s wishes.
What is an ‘equivalent’ position, anyway?
Under the FMLA, an “equivalent position” is one that’s virtually identical (NOT similar) to the employee's former position in pay, benefits and working conditions. This includes aspects of the job such as privileges, perks, and status. The equivalent position must involve the same or substantially similar job duties and responsibilities. It must entail substantially equivalent skills, effort, responsibility, and authority.
Employees’ equivalent positions must also include the following:
- The same or a geographically proximate worksite; and
- The same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments.
An equivalent position does not extend to “de minimis” (minor), intangible, or immeasurable aspects of the job.
Court chimes in on ‘de minimis’ job duties
Not every task must be the same or equivalent, at least according to one 4th Circuit opinion from 2017. An employee, Gary, created a to-do list of tasks that he would need to handle if the company won the bid for a certain contract. The company did not win the bid for the contract, so the employee was put on other projects with different tasks after he returned from FMLA leave. He sued claiming that he was not returned to his same position as it did not include the tasks on his to-do list.
The court disagreed with the employee, indicating that an equivalent position need not have all the same tasks.
Waag v. Sotera Defense Solutions, Inc., 4th Circuit Court of Appeals, No. 15-2521, May 16, 2017.
Key to remember: While employers must return employees to their original or equivalent position after FMLA leave, they do not have to return them to one with different conditions, such as schedules.
