So you tell your employer you need time off work because of a medical condition and your employer provides you Family & Medical Leave Act (FMLA) paperwork for your doctor to fill out. Your doctor sends in the paperwork with an estimated return to work date. Are you guaranteed your same job back? Our Ohio FMLA Lawyers provide all the answers on your right to reinstatement after taking protected leave under the FMLA.
Typically, an employee is entitled to reinstatement to his or her same position or to an equivalent position upon return from an FMLA-qualifying leave that does not exceed the maximum 12-week allotment. The right to reinstatement exists even if, while the employee was on FMLA leave, the employer replaced the employee or restructured the position due to the employee’s absence.
What is considered an equivalent position?
If the employee is not returned to his or her same position following his or her FMLA leave, the employer must place the employee in an “equivalent position.” This is defined as a position that is nearly identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, prerequisites and status. The new position must entail the same or substantially similar duties and responsibilities requiring the same skill, effort, responsibility and authority.
Typically, the employee must have the same opportunity to earn overtime, bonuses, profit-sharing, or other similar opportunities for payments beyond the employee’s regular rate of pay.
If the employee’s worksite is no longer available, the employee must be placed at a geographically similar worksite that will not significantly increase the employee’s commute in time or in distance. If an employee’s worksite has changed or closed, the employee must be afforded the same rights as those employees whose jobs were also impacted by the change in worksite.
What about pay and benefits while on FMLA leave?
Employees are entitled to nondiscretionary pay increases that may have occurred while the employee was on FMLA leave, such as company-wide cost of living pay increases. An employer is also required to pay the employee bonus payments (whether discretionary or non-discretionary) that occurred while he or she was on FMLA leave. However, if the bonus payments are conditioned upon achieving a specific goal, such as hours worked, attendance, or sales, and the employee did not reach the goal due to the time spent on FMLA leave, the employer is not obligated to make the bonus payment—as long as this practice is consistent for all employees who take leaves of absence, whether FMLA-related or not.
Upon a return from FMLA leave, an employee’s benefits must be resumed in the same manner they were when the employee went on leave, assuming there were no company-wide changes to the company’s policies. Employers are not required to (but may) allow employees to accrue any additional benefits or seniority during their FMLA leave. However, benefits already accrued before the employee takes leave (such as vacation days or PTO if not used concurrently with FMLA) must be available to the employee upon his or her return from FMLA leave.
What if my Return-to-Work date changes, either earlier or later?
If your return to work date changes, you need to notify your employer as soon as practicable.
If your return to work date is earlier, then you need to provide your employer the documentation required by them (See your company handbook for what is required), which may include a fitness for duty report from your doctor. After providing your employer the proper paperwork, your employer must return you to your position or an equivalent position within 2 business days.
If your return to work date is later, you need to have your doctor fill out new FMLA paperwork that extends your return to work date. You need to get this paperwork filled out and returned to your employer as soon as possible after finding out that your return to work date will be extended. It is important to be aware of how much FMLA time you have taken up to that point. You only get 12 weeks in a year!
Each situation raises different issues, and a review of the specific facts of your situation will be necessary to determine if a violation of the FMLA has occurred. If you believe that your rights under the FMLA have been violated, please reach out for more information and set up a free consultation with one of our FMLA attorneys in Columbus, Ohio.
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