Ask Rita: What to Do When the FMLA Replacement Is A Better Performer

Article Highlights:

• What do we say to an employee ready to return from FMLA when their job was taken over by someone who does it better?

What do we say to an employee ready to return from FMLA when their job was taken over by someone who does it better?

Dear Rita,

One of our employees was in a fairly serious, non-work-related car accident about 2 months ago.  They had some serious injuries but thankfully has recovered well and is almost ready to come back to work. They were also eligible to take FMLA and will be coming back when their 12 weeks of FMLA leave expires.

Because the position the employee had was critical to our operations and the services we provide, we had to move another employee into that position and we were careful to let the replacement know that the assignment was temporary because the employee would be coming back to the position when the FMLA is over.

One problem. The employee on FMLA was having challenges doing the job and was going to be spoken to before they had the accident. It was not long after the replacement started that it was very clear that they were head and shoulders better at doing this job than the employee on FMLA. We know we have obligations to the employee on FMLA to put them back into the original position but doing so might negatively affect the important work this position requires.

Any idea what we can do to do what FMLA allows yet make sure our business is not compromised?

Sincerely,

Confused

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Dear Confused,

You can take some comfort that this is a far from unique situation and one which innumerable employers face every day.  The employer has some flexibility, but that flexibility is limited.

Let’s start with the FMLA basics.

The Family and Medical Leave Act (FMLA) was enacted by Congress in 1993 to require employers of 50 or more employees to provide eligible employees up to 12 weeks of unpaid leave of absence for, among other reasons, the employee’s own serious health condition, or the serious health condition of certain designated family members. Eligible employees are those who have worked for the employer for 12 months and have worked 1250 hours in the 12 months prior to the start of the leave.

While the leave is unpaid, FMLA is a “protected” leave, meaning that when the leave has been exhausted, and the employee is ready to return to work, the employee “must be restored to the same job or to an equivalent job”.  It is important to note that the FMLA regulations say that the employee is not guaranteed the actual job held prior to the leave.

Thus, if the employee is going to be provided a different position on return from their leave, the employer must be very careful to ensure the new position is “equivalent” to the position they took the leave from.

According to FMLA guidance, an “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). The Department of Labor’s FAQs on FMLA are helpful in analyzing what an equivalent job is:

• Offers the same shift or general work schedule, and be at a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance);
• Involves the same or substantially similar duties, responsibilities, and status;
• Includes the same general level of skill, effort, responsibility and authority;
• Offers identical pay, including equivalent premium pay, overtime and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave; and
• Offers identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.).

More more information visit: https://www.dol.gov/agencies/whd/fmla/faq

While there is risk in not restoring the returning employee, you do have some latitude to reassign the returning employee to a different, but “equivalent” position.  If you choose to reassign on the employee’s return, a careful analysis of the alternative position to determine whether it is “equivalent” using the factors suggested by the Department of Labor, is essential to avoid a claim of retaliation or violation of FMLA.

If there is any question or uncertainly that the contemplated alternative position is not “equivalent” using these factors, the employee should be restored to the same position they took the leave from. When the employee returns, you can address any performance issues and need for improvements that were observed prior to the employee going out on leave.  As you would expect, you should also exercise caution in approaching the subject with the returning employee since they might perceive this action as retaliation for taking the leave — -also a prohibited action under the FMLA.

In summary, FMLA can present a minefield of risk and navigating that minefield should be guided by careful attention to the employee’s rights and providing the rights and protections to the employee — -even if someone can do the job better!

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