Returning to work post FMLA

I work for a bank with several branch locations.   If I have an employee out on FMLA but am in need of people to perform her job when she returns from  FMLA leave, can she begiven an equivelent position in another branch?  Does she need to return to her home branch?   I currently have two open positions in the branch she is working in and am at my wits end. 


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  • Hi Melissa:

    Under FMLA, it is not necessary that the employee be reinstated to the same job he or she left. However, "equivalent" position must be one with the same pay, benefits, and working conditions, including privileges, prerequisites and status; and requires that it involve the same or substantially similar duties and responsibilities, substantially equivalent skill, effort, responsibility and authority. Wherever possible, returning an employee to the same position he or she left is advisable because it avoids what may often become protracted disputes with employees over the exacting 'equivalence' standards that must be applied when an employee is offered a new job on return from leave.

    An employer cannot permanently replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists. Further, an employee's acceptance of a different, but allegedly equivalent, job does not extinguish the employee's statutory right to challenge this placement decision.

    Altering an employee's regular shift or transferring the employee to another worksite, even one that is geographically the same distance from the employee's home, may not satisfy the "equivalency" requirement, if it involves a significant increase in commuting time or distance. The new position must be at a worksite proximate in geography and commuting time to be deemed "equivalent." Similarly, transferring an employee to another department may threaten the "equivalency" of the position.

     The DOL gives the following example that seems to apply in your case:

    Example 1: John is a bank teller. He works at a bank branch 20 miles from his home. The branch is in a suburban neighborhood that allows John to do shopping or to jog during his lunch break. Upon return from leave, John is reassigned to a bank branch in the city. Geographically, the branch is 20 miles from John's home. All economic terms and conditions of employment are identical. The commute into the city, however, takes twice as long as his former commute because of traffic. Further, the new branch is located in an area with very little shopping, and jogging at lunch is impossible. Are the two teller positions equivalent? John would argue the positions are not equivalent. Conversely, the bank would claim the two jobs are identical. Questions like this ultimately must be decided on a case-by-case basis. Courts reviewing similar cases, however, have found that factors such as a commute that takes longer because of traffic differences weigh in favor of a finding that the positions are not equivalent.

     Hope this helps.

  • I totally agree with what you have said.  Sometimes we forget that what seems the same on paper is actually different in reality. 
  • Hi Melissa,

    I've worked with people who have been offered positions at other locations upon return from FMLA who have flat out refused to accept another location.  It has not been something that I've chosen to fight.  One HR person at a company that I worked at fought it in the past for someone she put out on leave.  She lost but that doesn't mean that you will always lose that battle.  But be careful when you chose your battles.  Is it worth the time and expense of a lawsuit?  You can offer her another location, which I would do prior to her returning, and see if she wants that location. Who knows, it may be closer to her home, or baby sitter.  If she doesn't, the person who is covering for her should probably be the one to move to another location.

  • I agree.  The time, expense and pain of a lawsuit (even if you win) is NOT worth it.  I would put someone else in her position, with the understanding that they are filling in for someone on a protected FMLA leave.  When/if the employee on leave returns, return her to her position and move the fill-in person to the other branch.

    I had a similar situation where I had a clerical person out on FMLA.  I could not fill her position, but we couldn't manage without it being filled (life goes on).  In the end, I gave it to someone with the same above understanding.  The FMLA person ended up NOT coming back and the fill-in person transitioned into the position full-time. 


    Good Luck!


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