(a)
Equivalent position. 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.
(b)
Conditions to
qualify. If an employee is no longer qualified for the position because
of the employee's inability to attend a necessary course, renew a license, fly
a minimum number of hours, etc., as a result of the leave, the employee shall
be given a reasonable opportunity to fulfill those conditions upon return to
work.
(c)
Equivalent
pay.
(1) An employee is entitled to
any unconditional pay increases which may have occurred during the FMLA leave
period, such as cost of living increases. Pay increases conditioned upon
seniority, length of service, or work performed must be granted in accordance
with the employer's policy or practice with respect to other employees on an
equivalent leave status for a reason that does not qualify as FMLA leave. An
employee is entitled to be restored to a position with the same or equivalent
pay premiums, such as a shift differential. If an employee departed from a
position averaging ten (10) hours of overtime and corresponding overtime pay
each week, an employee is ordinarily entitled to such a position on return from
FMLA leave.
(2) Equivalent pay
includes any bonus or payment, whether it is discretionary or
non-discretionary, made to employees consistent with the provisions of
subsection (c)(1) of this section. However, if a bonus or other payment is
based on the achievement of a specified goal such as hours worked, products
sold or perfect attendance, and the employee has not met the goal due to FMLA
leave, then the payment may be denied, unless otherwise paid to employees on an
equivalent leave status for a reason that does not qualify as FMLA leave. For
example, if an employee who used paid vacation leave for a non-FMLA purpose
would receive the payment, then the employee who used paid vacation leave for
an FMLA-protected purpose also must receive the payment.
(d)
Equivalent benefits.
"Benefits" include all benefits provided or made available to employees by an
employer, including group life insurance, health insurance, disability
insurance, sick leave, annual leave, educational benefits, and pensions,
regardless of whether such benefits are provided by a practice or written
policy of an employer through an employee benefit plan as defined in Section
3(3) of the federal Employee Retirement Income Security Act of 1974,
29
U.S.C. 1002(3).
(1) At the end of an employee's FMLA leave,
benefits must be resumed in the same manner and at the same levels as provided
when the leave began, and subject to any changes in benefit levels that may
have taken place during the period of FMLA leave affecting the entire
workforce, unless otherwise elected by the employee. Upon return from FMLA
leave, an employee cannot be required to requalify for any benefits the
employee enjoyed before FMLA leave began, including family or dependent
coverages. For example, if an employee was covered by a life insurance policy
before taking leave but is not covered or coverage lapses during the period of
unpaid FMLA leave, the employee cannot be required to meet any qualifications,
such as taking a physical examination, in order to requalify for life insurance
upon return from leave. Accordingly, some employers may find it necessary to
modify life insurance and other benefits programs in order to restore employees
to equivalent benefits upon return from FMLA leave, make arrangements for
continued payment of costs to maintain such benefits during unpaid FMLA leave,
or pay these costs subject to recovery from the employee on return from
leave.
(2) An employee may, but is
not entitled to, accrue any additional benefits or seniority during unpaid FMLA
leave. Benefits accrued at the time leave began, such as paid vacation, sick or
personal leave to the extent not substituted for FMLA leave, however, must be
available to an employee upon return from leave.
(3) If, while on unpaid FMLA leave, an
employee desires to continue life insurance, disability insurance, or other
types of benefits for which he or she typically pays, the employer is required
to follow established policies or practices for continuing such benefits for
other instances of leave without pay. If the employer has no established
policy, the employee and the employer are encouraged to agree upon arrangements
before FMLA leave begins.
(4) With
respect to pension and other retirement plans, any period of unpaid FMLA leave
shall not be treated as or counted toward a break in service for purposes of
vesting and eligibility to participate. Also, if the plan requires an employee
to be employed on a specific date in order to be credited with a year of
service for vesting, contributions or participation purposes, an employee on
unpaid FMLA leave on that date shall be deemed to have been employed on that
date. However, unpaid FMLA leave periods need not be treated as credited
service for purposes of benefit accrual, vesting and eligibility to
participate.
(5) Employees on
unpaid FMLA leave are to be treated as if they continued to work for purposes
of changes to benefit plans. They are entitled to changes in benefits plans,
except those which may be dependent upon seniority or accrual during the leave
period, immediately upon return from leave or to the same extent they would
have qualified if no leave had been taken. For example, if the benefit plan is
predicated on a pre-established number of hours worked each year and the
employee does not have sufficient hours as a result of taking unpaid FMLA
leave, the benefit is lost.
(e)
Equivalent terms and conditions of
employment. An equivalent position must have substantially similar
duties, conditions, responsibilities, privileges and status as the employee's
original position.
(1) The employee must be
reinstated to the same or a geographically proximate worksite
(
i.e., one that does not involve a significant increase in
commuting time or distance) from where the employee had previously been
employed. If the employee's original worksite has been closed, the employee is
entitled to the same rights as if the employee had not been on leave when the
worksite closed. For example, if an employer transfers all employees from a
closed worksite to a new worksite in a different city, the employee on leave is
also entitled to transfer under the same conditions as if he or she had
continued to be employed.
(2) The
employee is ordinarily entitled to return to the same shift or an equivalent
work schedule.
(3) The employee
must have the same or an equivalent opportunity for bonuses, profit-sharing,
and other similar discretionary and non-discretionary payments.
(4) FMLA does not prohibit an employer from
accommodating an employee's request to be restored to a different shift,
schedule, or position which better suits the employee's personal needs on
return from leave, or to offer a promotion to a better position. However, an
employee cannot be induced by the employer to accept a different position
against the employee's wishes.
(f)
De minimis exception. The
requirement that an employee be restored to the same or equivalent job with the
same or equivalent pay, benefits, and terms and conditions of employment does
not extend to de minimis, intangible, or unmeasurable aspects of the
job.
