Do You Really Want to Replace An Employee on FMLA Leave?

According to the Family and Medical Leave Act (FMLA), an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  The question that many employers have is “What is an equivalent position?”

The regulations state that 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 similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  Still not clear?  The courts are might offer some guidance.   

Here's the scenario: 

A female computer teacher went on maternity leave.  Due to complications during delivery and a medical condition that her infant had, the teacher required a lengthy FMLA leave. Her school district hired a substitute teacher to take over her assignments during her leave of absence.   A few weeks later, the teacher on leave was informed by the school principal that he decided to replace her permanently.  The school district gave the teacher on leave the option of returning to a full-time classroom teacher position instead of a computer teaching position.  When she declined the classroom position, the school district terminated her employment.  The teacher is suing alleging FMLA interference and retaliation.  Read the filings here.

 

This case is currently being litigated but this scenario is not unique.  Employers are often tempted to make changes in their organizations when a current employee is out for period of time and especially when things seem to be going well with a new employee or the new arrangement.  However, replacing an employee on FMLA will likely expose your organization to litigation. 

The Bottom Line for Employers:

• Avoid permanently replacing employees while they're on FMLA leave.  Chances are, once you’ve found some way of insuring that their work is being performed, you can wait a few weeks or months until the employee returns to work.  

• If you can't wait and are returning an employee to an equivalent position, you should be able to articulate your reason for this decision (and its timing).  You should also be able to demonstrate that the new position requires the same level of duties, skill, responsibility, and offers the same compensation, earning potential, authority and career path and promotion opportunities within your organization as the prior position.  

• You should also pay close attention to the working conditions of the new position.  Look at perquisites and status of the prior assignment and the proposed new position.  Even if the compensation of the new position is higher, if there is a perception of a loss in status, this could be view by the employee as a demotion and therefore not an equivalent position. 

 

The decision to make any changes in an employee’s position or employment status requires careful consideration.  Contact me if you’re facing these decisions and need some assistance. Please visit my website for more information about my firm and practice areas. 

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