Employers subject to the FMLA have certain obligations with regard to job and benefit restoration. Besides maintaining health benefits for eligible employees on FMLA leave and retaining all accrued benefits while the employee is on leave, an employer is also obligated to allow eligible employees returning from leave to return to the job position they held prior to the leave or to an equivalent position. There is a narrow exception to this rule for certain key employees.

Job restoration. An employee who takes FMLA leave is entitled to be restored to the same position that the employee held when the FMLA leave started, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. On the other hand, the FMLA does not entitle a restored employee to any more rights, benefits, or employment beyond that to which the employee would have been entitled had the employee not taken FMLA leave.

Equivalent position. An equivalent position must offer the same pay, benefits, and working conditions. It must involve the same or substantially similar duties and responsibilities. It also must entail substantially equivalent skill, effort, responsibility, and authority.

If special qualifications required for the position have lapsed during the employee's leave (for example, a continuing education requirement for accountants or lawyers), the employee must be given a reasonable opportunity to fulfill the requirements after returning to work.

The employee must be restored to the same worksite from which the employee commenced leave, or to a nearby worksite. In addition, the employee is entitled to be returned to the same shift or equivalent schedule, and have the same opportunity for bonuses and profit-sharing. Any increases in pay or changes in benefits that are not dependent upon seniority or accrual during the leave period must go into effect when the employee returns to work.

Note, however, that the requirement that a restored employee receive the same or equivalent pay and benefits does not extend to intangible or unmeasurable aspects of the job, such as potentially diminished opportunities for promotion.

The FMLA does not prohibit an employer from accommodating an employee's request to be shifted to a schedule or position that better suits the employee's needs upon returning from leave. It merely prohibits an employer from inducing an employee to accept a different position against the employee's wishes.

Key employees. Under certain circumstances, a key employee may be denied restoration to employment. However, key employees are always entitled to maintenance of their health benefits during their leave. A key employee is a salaried employee who is among the highest-paid 10 percent of the employer's employees working within 75 miles of his or her worksite. Determining the highest-paid 10 percent of employees is based on year-to-date earnings as of the date leave is requested.

An employer may deny restoration to a key employee only if such restoration would cause "substantial and grievous economic injury" to the operations of the employer. Denial of restoration is justified only where the restoration to employment, rather than the taking of the leave, would cause a substantial and grievous economic injury to the employer. An employer must notify employees of their status as key employees if the employer believes there is a possibility that the employee's job will not be restored at the end of the leave period.

Source: 29 CFR §825.216; Employee Benefits Management Newsletter, 618, September 20, 2016.