FMLA reinstatement: ‘Equivalent’ doesn’t mean ‘similar’
As a crane operator, Rory performed his job well. After being involved in a car accident, he took leave under the Family and Medical Leave Act (FMLA) to recover. His injuries, however, would require future treatment, including possible surgery after he returned to work.
During his leave, another employee covered Rory’s work. When he returned, the employer told Rory that he would be operating a tow motor instead of a crane, despite being medically cleared to operate a crane. Rory was not happy about this because a tow motor operator position was not the same as a crane operator position, and the company used tow motors much less frequently. Therefore, he viewed it as a demotion.
The employer told Rory that it had concerns, since his accident, that he would need more time off in the future, and cranes operators needed to be available at all times. Therefore, the company wanted someone else to operate the crane.
Rory’s angst about what he believed to be a demotion notwithstanding, the act violated the FMLA.
Equivalent position
When employees are ready to return to work after taking leave under the FMLA, they are entitled to return to the position held before leave began or an equivalent one. Equivalent does not mean similar. The FMLA regulations are fairly clear on this point:
“An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially the same duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 CFR 825.215
In Rory’s case, operating a tow motor did not involve the same duties, responsibilities, skills, and effort.
Other conditions of employment
Employers must also reinstate employees to the same shift, same or close location, and opportunity for benefits such as bonuses and profit-sharing.
Just because an employee might need time off in the future does not allow employers to deny employees their reinstatement rights. Courts and the U.S. Department of Labor could see such an action as retaliation against an employee for needing FMLA leave.
Key to remember: The FMLA requires employers to return employees to their position or an equivalent one, and equivalent means virtually identical, not similar.
