May 04, 2016
I. Restoring An Employee After An FMLA Leave Concludes
At the end of an FMLA covered leave, the employer must reinstate the employee to his or her former position or "an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment." 29 U.S.C. § 2614 (a); 29 C.F.R. § 825.209(e). Upon an employee's return from FMLA leave, he or she is entitled to an equivalent position to that enjoyed prior to the start of leave: one virtually identical in terms of pay, benefits, privileges, perquisites and status. It must involve the same or similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. 29 C.F.R. § 825.215. The definition of equivalent position is among the most litigated issues relating to the FMLA.
A. Return to Equivalent Position
To fulfill the provision of equivalent terms and conditions of employment, employees must be provided with the same conditions apparent in his or her original position: reinstatement to the same or a geographically proximate worksite (if original site is closed, the employee must be afforded the same rights as though he had not left prior to the closing of the worksite or the same rights as those employees that did not take leave), same work schedule, and the same opportunity for bonuses, profit-sharing, and other discretionary and on-discretionary payments.
While employers may offer an employee a different position, they cannot force an individual to take on a different position against that employee's will. Whenever possible, an employer should strive to return the employee to his or her original job.
If the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA. 29 C.F.R. § 825.216(c). For example, in Jewell v. Reid's Confectionary Co.,
172 F.Supp.2d 212 (D. Me. 2001), a truck driver had a heart attack and had a defibrillator implanted in his chest. The state of Maine, therefore, suspended the employee's driver's license.
When the employee was cleared for work after his FMLA leave, he did not have a driver's license. Without his driver's license, the employee could not perform the essential function of his job – i.e. driving. Because the FMLA does not contain a reasonable accommodation provision, the employer was not required to reinstate the employee. This does not mean that the employee needs to have 100% capacity; it simply means that the employee needs to be able to perform the "essential functions" of the job. Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002).
Under the FMLA, an employer cannot require a returning employee to take a modified or light duty position. If the employee still has FMLA leave time remaining, the employee can choose to remain on leave. If the circumstances requiring FMLA leave may have rendered an individual unqualified for the position upon return from the leave, an employee must be allowed a reasonable opportunity to attend necessary courses, renew licenses, and attain a minimum number of flight hours, etc. in order to fulfill such obligations as to qualify for the position.
Even if an employee is not entitled to reinstatement to an equivalent position under the FMLA, the employer still has obligations under the Americans with Disabilities Act and a state's workers' compensation laws. These topics should also be considered and are addressed in other sections of these materials.
B. Maintenance of Benefits
FMLA leave may be paid or unpaid. 29 U.S.C. § 2612(c). Moreover, an employer may require the employee to use paid time off as part of the FMLA leave. For example, an employer may require an employee to use accrued vacation, sick and personal time as part of the 12 weeks leave. If an employer chooses to do so, this policy needs to be clearly stated as part of the FMLA leave policy.
During the leave, an employer also must continue to provide group health insurance benefits to the employee on the same basis as if the employee was an active employee. 29 U.S.C. § 2614(c). The employer, however, is not required to provide health insurance coverage for any employee who, if actively employed, would not be eligible for coverage under the group health plan. 29 C.F.R. § 825.209. If an employer requires an employee co-payment when the employee is working, the employer can collect the same co-payment when the employee is on leave. One court has held that an employer's use of accrued vacation pay for an employee's health insurance co-payments does not violate the FMLA. Deily v. Waste Management of Allentown, 118 .Supp.2d 539 (E.D. Pa. 2000). In contrast, an employer is not required to extend other benefits (e.g., life, disability, etc.) during the leave, but must reinstate such benefits upon return to work without requiring the employee to re-qualify for such benefits or subjecting the employee to any pre-existing condition, waiting period or physical examinations even if coverage lapsed during the FMLA leave due to the employee's failure to make premium payments. 29 C.F.R. § 825.212; § 825.213(f); § 825.215(d). If an employer establishes a health plan while an employee is out on FMLA leave, the employee become entitled to health benefits starting on the date when he would have otherwise become eligible if still on the job. If coverage options change during the time an employee is on FMLA leave, those options must be made available to the employee to the same extent that the options would have been made available if the employee was not on FMLA leave.
In certain limited circumstances, if the employee fails to return to work after expiration of the required leave, the employer may recover the group health insurance premiums paid to maintain health insurance coverage. 29 C.F.R. § 825.213(a). The DOL regulations provide that an employer may terminate health insurance coverage if the employee fails to timely pay his/her share of any health insurance premium after a 30 day grace period. 29 CFR § 825.212. Such event will probably trigger the COBRA notice requirement. In addition, an employer's obligation to provide health insurance benefits to an employee on FMLA leave ends when (1) the employee informs the employer of the employee's intent not to return from FMLA leave, even if this occurs before the FMLA leave has started, (2) an employee terminates employment by failing to return from leave, or (3) the employee exhausts the FMLA leave allotment.
C. Benefits Upon Restoration
An employee returning from FMLA leave is entitled to any unconditional pay increases which may have occurred during the leave period and to be restored to a position with the same pay premiums as before he or she departed. For employees working in conditions where it is the employer's practice to grant pay increases based upon seniority, length of service, or work performed, in cases of 'leave without pay,' all pay increases are to be based upon these criteria excluding the prescribed period of unpaid FMLA leave.
Taking FMLA leave does not exclude employees from bonuses that they qualified for prior to taking their entitled leave of absence. In other words, if an employee met the requirements for bonuses prior to taking FMLA leave, they still have continued entitlement to
seek such bonuses.
Employees are entitled to benefits - group life insurance, health insurance, disability insurance, sick leave, animal leave, educational benefits, and pensions - upon returning from FMLA leave equivalent to those made available by the employer at the time that leave began.
Therefore, employers must act accordingly to modify benefits programs in order to restore equivalent benefits upon an employee's return so that employees do not have to re-qualify for those benefits enjoyed prior to taking leave. During instances of unpaid FMLA leave, employers are required to follow established policies when an employee desires to continue benefits for which he or she typically pays before FMLA leave begins. Benefits or seniority may be accrued during an unpaid FMLA leave. In addition, those benefits compiled prior to the start of FMLA - such as paid vacation, sick or personal leave not considering FMLA leave requirements - must be available when employees return from leave. Pensions and retirement plans are not hindered by FMLA leave. Unpaid FMLA leave does not count as a break in service and, therefore, does not limit or alter an employee's eligibility to participate in retirement or pension plans. The fact that
an employee takes leave does not exclude him or her from changes in benefit plans. They are to be treated as if they continued to work and subject to the same extent of opportunities for benefits as though they had never left.
An employee has no further claim to the restoration of work beyond the equivalent of his or her position prior to taking leave. Furthermore, the only way that an employer may effectively deny an employee full restoration to a job is to demonstrate that the employee had, in fact, been laid off during the FMLA leave period. Upon proof of the termination of an employee and in the absence of continuing responsibilities under a collective bargaining agreement, all obligations by the employer to provide for group health plan benefits, continue FMLA leave, and restore the employee conclude. Filling a position or shift with another employee does not alleviate the obligations of the employer to restore an employee returning from FMLA leave to his or her original shift. However, if that shift is terminated or overtime hours have been limited since that employee’s departure on leave, he or she has no entitlement to work on that original shift or the overtime that no longer exists.
It is the right of the employer to refuse the restoration of an employee's position in three other specific circumstances: (1) an employee was hired for a discrete project and that project had since ended or the employment term had expired; (2) when the restoration of a salaried eligible employee threatens severe economic injury to the operations of the employer; and (3) if the employee has surpassed the allotted 12 week leave and is thereby no longer protected by FMLA (under this circumstance, employees must look to applicable worker's compensation statutes or ADA for other potential protections that may apply).
The FMLA provides a limited exception for certain "highly compensated" salaried employees. 29 U.S.C. § 2614(b). Specifically, the exception applies if:
a. The individual is among the highest paid 10% of employees of the employer working within a 75-mile radius of the facility;
b. The denial of reinstatement is necessary to prevent "substantial and grievous economic injury" to the employer's operations;
c. The employer notifies the employee of its intent to deny reinstatement as soon as the employer determines that economic injury would occur; and
d. The employee elects not to return to work after receiving notice. 29 U.S.C. § 2614(b).