If an employee goes on a leave of absence under the Family and Medical Leave Act (FMLA), does an employer have to reinstate the employee to the exact same position upon the employee’s return to work?  No, although in general, the employee must be reinstated to an “equivalent position.”

Upon returning from FMLA leave, employees are entitled to be returned either to their same position or to an “equivalent position.”  29 U.S.C. § 2614(a).  An “equivalent position” is defined as one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, prerequisites and status.  It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  29 C.F.R. § 825.215.  Even if the employee has been replaced or his or her position was restructured to accommodate the employee’s FMLA absence, the employee has the right to reinstatement to an equivalent position.

This said, a reinstated employee is not entitled to any more rights or benefits than those to which the employee would have been entitled had the FMLA leave not occurred.  Additionally, there are some specific circumstances when an employer may deny reinstatement.  Layoffs and shift changes are two more common situations where an employer may legitimately deny reinstatement, depending on the facts involved.  If an employer denies reinstatement, the burden is on the employer to prove that an employee would not otherwise have been reinstated to his or her employment.   

Takeaway:     Any time an employee is returning from FMLA leave, there are several things that an employer must consider if the employer intends to reinstate an employee to a different position or deny reinstatement entirely.  The FMLA requirements regarding reinstatement can be complicated, thus, a careful review of these requirements is necessary to limit legal exposure.