Comparable Job with Training?

NormB45

If I fill the job left by an employee out under FMLA, can I bring her back and place her into a similar job that would require significant training?

She is currently a claims adjuster, specializing in workers compensation claims. The new posiiton would also be a claims adjuster, but would specialize in commercial auto claims. The core claims adjusting skills are similar but the regulations, processes and nature of claims are different. It would take about one or two months to train her in the new area. Of course, we would keep her salary, work schedule and other terms of employment the same. The new position would actually give her more earning potential as there is a lucrative incentive plan in place that does not exist in her current position.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 12-02-02 AT 11:41AM (CST)[/font][p]My reading of the FMLA defines equivalent position as one that is virtually identical to the ee's former position in terms of pay, benefits and conditions, etc., involving the same or substantially similar duties and responsibilities. Further, that the ee is entitled to reinstatement to her former or equivalent position even if she was replaced or the position has been restructured to accommodate the ee's absence. I don't read anything about a similar job that requires 'substantial' training as you suggest. In fact, I would think that might be viewed as a job that IS NOT substantially the same since it requires significant training, could conceivably induce quite a bit of stress on the returnee, could have termination as a consequence of failure to excel in the training and might even be viewed by her or others as punitive. I understand what you're saying about the additional perks the new position 'might' enjoy; however, I can see how others might be looking at the flip side of that and NOT see it as 'same or substantially similar'. One might also wonder if these two jobs are indeed that similar since one has certain additional benefit possibilities attached to it. That may mean to a reviewer that indeed the auto claims job is more difficult to excel in. Otherwise, why doesn't the comp adjuster's job have the same potential? This might be a good opportunity for cross training of others, even the new replacement, who could slide into the Commercial Auto Claims job when the FMLA ee returns to the Comp job she held prior to FMLA.

vmiller MO

I know that this will sound legalistic, but it cannot be helped. The regulations require that an employee returning from a FMLA leave be returned to the employee's former position or "an equivalent postion." "An equivalent postion" is not legally the same as a "comparable" position.

The regulations also define what is an equivalent position. The opening sentence of 29 CFR Section 825.215(a) states, "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." That subsection further states that the equivalent position "must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority."

Subsection (e)(4) states that the "FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position. . .or to offer a promotion to a better position. However, an employee cannot be induced by the employer to accept a different position against the employee's wishes."

From your posting, it appears that the new position comes close to meeting the "equivalent position" test. The troubling aspect is that the employee has to "train" for several months in this position. What happens if she is not successful in the training? Have you really restored her to an equivalent position? It might be a better position, but is it really equivalent?

The fact pattern that you have outlined present very interesting legal issues. Ones that we lawyers like to litigate. The question is how much risk does your company want to undertake.

An alternative, you may want to consider offering the new position and explaining to her the opportunity for advancement. At the same time telling her that she can return to her current position if she does not want the new position. If she volutarily accepts the new position, then your problem is solved.

I further suggest that your company consult with its attorneys before you take any action.

I hope this helps.