The Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave. Not surprisingly, I often am asked by clients, "What is an 'equivalent' position?"

On their face, the FMLA regulations seem to be a bit unforgiving for employers, offering what appears to be little wiggle room in returning the employee back to his/her original status.

The regulations state that 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. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

My emphasis above. But the regulations appear to offer little wiggle room, right? A recent federal court case highlights the cautious approach employers should take when returning an employee to work after FMLA leave

The Facts

Sally Wanamaker was a computer teacher for the Westport Board of Education in Connecticut. While on maternity leave, Sally gave birth to her daughter, but she had complications during labor that resulted in a spinal cord injury. Her daughter also was born with a heart defect, necessitating a lengthy period of FMLA leave.

She claimed that, at first, her school district told her it would employ a substitute teacher to cover her work during her leave of absence. However, just a few weeks later, Sally alleged that the principal informed her that he had decided to replace her permanently. Later, the school district gave her the option of returning to a full-time classroom teacher position instead of a computer teaching position. When she declined the classroom position, the district terminated her employment.

The Ruling -- New Position Might Not Be Equivalent

This case is at the beginning stages of litigation, but at least at the outset, the court refused to dismiss Sally's FMLA interference and retaliation claims. Notably, the court found that a reasonable juror could infer that the offer of a full-time classroom position was not equivalent to her former computer position, particularly in terms of skills and responsibilities. In fact, the court suggested such a move actually might be considered a demotion. Wanamaker v. Bd. of Education (pdf).

Insights for Employers

1. Of course, employers often have to temporarily replace an employee while they are on FMLA leave. However, avoid the temptation of replacing them permanently. Permanently replacing the employee on FMLA leave requires you to return them to an equivalent position, which (as you see above) is fraught with danger. (Permanently replacing an employee also causes ADA headaches, since employers are obligated to hold open an employee's position while they are out on leave as a reasonable accommodation under the ADA.)
2. If you are returning an employee to an equivalent position, be prepared to show that you gave the decision considerable thought and document how you determine to be equivalent. Prepare an analysis of how the new position requires the same level of duties, skill, responsibility, earning potential, authority and room for advancement within the company or organization.
3. I find that employers often get into trouble when they don't fully consider how the duties of the new position will be viewed by the employee in terms of prestige, authority and especially earning potential. One common example is a sales position. Here, an employer can't take the approach that all of its sales managers are the same. Selling a different trinket, or assigning them to different accounts that arguably provide for less earning potential or cause them to work with "lower profile" clients in your industry may very well be enough -- in light of the fairly stringent regulations above -- to create genuine risk of a viable FMLA interference or retaliation claim. I am not suggesting here that the employee gets to choose the position to which he/she returns, but employers simply need to be mindful of the impact of the decision and give it some thought beforehand.
4. Another sobering reminder: Be mindful of what you put into email and about the comments you make about an employee's leave of absence. In Sally's case above, her principal allegedly: 1) told the union president that Sally's daughter's health condition was one of the reasons she was replaced permanently; and 2) sent an email to all staff that suggested that short-term absences were not legitimate and may dealt with more harshly. Hello...FMLA intermittent leave!?! Nothing is more short-term than intermittent leave. As we have pointed out in other posts here and here, emails and thoughtless comments almost always come back to haunt employers. (I say this while fully acknowledging that the comments above come from a union president, which of course will be subject to discovery and cross exam.) In any event, the best practice is clear -- stop saying things that will make you cringe if and when they are uttered in front of a jury!