Shifting Job Duties

WOCO Frank

I have a shift leader who just returned from 12 weeks of leave. Her job, under ordinary circumstances, would be second shift, with rotating weekends. Several months before she went on leave, her manager moved her to days because he needed her help. During her leave, we replaced the manager, and the new one does not need her on days. Are we obligated to return her to first shift, as she is demanding, or can we return her to the conditions her job would have normally included?

TIA!

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 08-13-02 AT 05:52PM (CST)[/font][p]She is entitled to the same job or an equivalent job to the one she had before she went on FMLA leave. The fact that she would normally have worked evenings doens't mean anything because the company placed her on days.

Under FMLA "equivalent job" means: similar responsibilities, the same pay, same shift, same work schedule, fringe benefits and other privileges of employment and same opportunity for bonuses, advancement, and at the same or geographically proximate worksite.

Take a look at the regulations at 29CFR825.815:

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.215.htm[/url]

What does the manager really mean by "doesn't need her on days"? Was the position actually curtailed or was someone else put in the position? If the latter, the employee under 29CFR825.216 is entitled to the same job she had before she went on leave, even "bumping" out the replacement employee.

If you really can't return her to the same or an "equivalent job" in all aspects, including shift, then talk to her about what would be acceptable. May be there can be mutual agreement on what will be satisfactory. Isn't that what you want at this point? Maybe she'll take an agreement that when the day job is available she'll be moved there. Or maybe she'll take another job, that she can do with the same pay and fringe benefits if it's during the day. But it must be her choice.

Don D

My thought is: Would she have remained on days or transferred back to evening shift after the temporary assignment (forgetting for the moment FMLA)? And was she told and is it documented that the shift change was temporary and that she would move back to her normal assignment? If the change was temporary, she was clearly told and was aware of that fact and the fact is somewhere in somebody's contemporaneous notes, then to me it is identical to this scenario: They move me to a position which oversees the entire plant for a week due to somebody's absence, and I know the temporary nature of that assignment. On the last day of that week I'm laid up in the hospital and am off for 6 weeks on FMLA. When I come back to work, it is unrealistic, and not required by FMLA, for me to be able to demand that I return to the position overseeing the plant.

Theresa Gegen TX

A recent Texas case involving a nurse held that moving her to the night shift was not an equivalant position under the FMLA. The safest thing to do would be to put her back on days.

Good Luck