FMLA Does Not Expand an Employee’s Job Restoration Rights

Issue: Before a nursing employee went on leave taken in accordance with the Family and Medical Leave Act (FMLA), she had been scheduled and worked according to what was known as the “Baylor” plan—an incentive program developed to ensure adequate weekend staffing. However, shortly before she went on leave, the employer decided to terminate the Baylor plan because it was now capable of adequately staffing its facility without the plan. Nonetheless, the employer allowed the employee to continue working under the plan until she went on leave, and eliminated the plan only after she left. When the employee returned, she claimed that she should continue to be compensated under the Baylor plan with its guaranteed overtime and bonus pay. The employer refused and offered reinstatement under its current working conditions. Did the employer lawfully restore the employee to the same position, at the same base rate of pay, and with the same benefits she enjoyed before she went on leave?

Answer: Yes. The employer restored the employee to an “equivalent position” within the meaning of the FMLA, ruled a federal district court in Alabama. Because the employee returned from leave precisely where she left, her employer was entitled to judgment as a matter of law.

The only difference between the employee’s current employment conditions and those she enjoyed when she went on leave was that the Baylor plan was no longer in effect. In that regard, the employer’s decision to eliminate the Baylor plan was approximately equivalent to eliminating a shift. FMLA regulations specifically state, “if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration.” 29 C.F.R. §825.216(a)(2). Accordingly, the employee was entitled only to be restored to her former position on the “equivalent” terms offered by her employer. Otherwise, declared the court, the employee would have “greater benefits” than those to which she “would have been entitled had she never taken … leave.”

Employer obligations:
Under the FMLA, an employee returning from leave does not have the right to return to the same position, although an employee would ordinarily be returned to his or her prior position if that position remains available. While a returning employee’s rights are no greater than they would have been if FMLA leave had not been taken, it is the employer who must establish the extent of those rights. A restored employee is not entitled to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”

Cite: Roshetko v Beverly Enterprises-Alabama, Inc. (SDAla 1999), No 98-0101-BH-S, 137 LC 33,841.

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