What Job Are You Entitled to When You Return to Work After FMLA Leave?

New York employers, like those in every other state in the U.S., are required to uphold the Family and Medical Leave Act. This act allows for employees who are eligible to take unpaid leave for specific reasons – such as a serious illness or having a child – and be certain that they will still have a job when the leave is over. But just what kind of job can you expect to come back to?

You Have the Right to Be Reinstated to Your Former Position or an Equivalent Position

If your FMLA leave was short, you may be able to return to your former position and the FMLA guarantees that if your former position is available, your employer should reinstate you to that position. However, sometimes FMLA leaves are several weeks long and businesses have no choice but to fill the open position to continue operations.

If this is the case, your employer is required to reinstate you to an equivalent position when your old one is no longer available. What exactly defines a position equivalent to your previous one?

• Same pay and benefits. The new position can only be considered equivalent to your old position if the pay is the same. This includes your base hourly compensation, but also includes commissions, bonuses, benefits, and any other compensation that was available to you in your prior position.
• Same type of work. The new position must have the same or very similar job duties in order to be “equivalent.” This means that you cannot be asked to perform a job that is outside the scope of work of your previous position, however, an employer must also ensure that the new position is as prestigious as the old.
• Same location. The new position must be in a location either at the same facility or somewhere close by. The new position cannot be considered equivalent if it is in a facility that is much farther away and requires additional commuting time from the employee.
• Same schedule. The new position must have the same or similar schedule as the previous position. For example, if a day-shift nurse at a hospital in the Bronx has to take FMLA leave and returns several weeks later, he or she cannot be moved to night shift.

While some minor differences are allowable under the law simply due to the unpredictable nature of employment, but, generally speaking, if an employer cannot reinstate you to your former position after FMLA leave, and has no legitimate business justification for failing to do so, your new position must be highly similar.  An employer, however, does not have an obligation to create a job for you, but they cannot simply take your job away while you are on leave without a good reason.

Does Your New Position Look More Like a Demotion?

Unfortunately, many times when employees return to work after FMLA leave, their “equivalent positions” start to look quite a bit like a demotion. The pay may be the same, but a benefit that was previously available may not be, or the hours may be somewhat different.

Often, job duties with less prestige are doled out to employees returning from FMLA leave because the employer has already filled their temporarily vacant position, possibly concerned about lost productivity or pending assignments, and maybe there’s not much left to do for the employee coming back. However, this is a clear FMLA violation.

Hiring a New York FMLA Lawyer

If you suspect that your employer may be violating FMLA laws when reinstating you to your old position or an equivalent position after you return to work from leave, it’s critical that you reach out for experienced legal help.

At the Working Solutions Law Firm, we can help put pressure on your employer to abide by federal FMLA laws and New York State leave laws. Contact us today for a consultation by calling (646) 430-7930.