- M. Lee Smith Publishers

<font size="1">Excerpted from Alabama Employment Law Letter and written by an attorney at the law firm of Lehr Middlebrooks & Vreeland, P.C.</font> <br /> <br /> You're sitting in your favorite HR juke joint, crying into your beer over the pain and heartache your employees have caused you this week. After a few cold ones, solving the world's HR problems begins to look simple.<br /> <br /> Then, as you near that moment of perfect clarity, the lights come up and the bartender shouts, "You don't have to go home, but you can't stay here!" It's closing time; what do you do now? You go from clarity to confusion in nothing flat.<br /> <br /> It's the same unsettling feeling you get after successfully working through an employee's Family and Medical Leave Act (FMLA) eligibility (pat yourself on the back) and he has now returned, demanding his old job back (groan).<br /> <br /> <strong>Leavin' on your mind</strong><br /> You've mastered the criteria for granting FMLA leave and may even have the fun ones tattooed somewhere on your body. Eligible employees (i.e., employees who have been employed by you for at least 12 months and worked 1,250 hours during the preceding 12 months) are entitled to 12 workweeks of unpaid leave during any 12-month period for these reasons:<br /> 1. birth of a child or to care for a child;<br /> 2. placement of a child with the employee for adoption or foster care;<br /> 3. care of a spouse, child, or parent who has a "serious health condition"; or<br /> 4. the employee's own "serious health condition" that makes him unable to perform the functions of his job. <br /> <br /> Easy enough. But what happens when the employee is ready to return from FMLA leave? Here it sometimes gets complicated -- another employee has covered the leavin' employee's job for 12 weeks and does it better. Or the returning employee hasn't exhausted all of his leave and you fear you'll have to reshuffle to cover his job when he takes the rest of his leave. What are your obligations?<br /> <strong><br /> He ain't the leavin' kind</strong><br /> I'm really glad that Patsy can return to work. But while she was away, I hired Waylon to fill her job, and he's a much better employee than she ever was. Does the FMLA really require me to give Patsy's job back to her?<br /> <br /> Yes -- sort of. Although FMLA regulations provide that an "employee is entitled to be reinstated [to her old job] even if the employee has been replaced or her position has been restructured to accommodate [her] absence," the Act permits you to restore Patsy to her previous position or to an "equivalent position."<br /> <br /> For a job to be equivalent, it must involve "virtually identical" duties, responsibilities, skills, effort, and authority as her former job. The equivalent position also must have equivalent benefits (e.g., group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions), pay (with bonuses and profit-sharing), and other terms and conditions of employment as her previous job.<br /> <br /> For example, if Patsy worked an average of 10 hours of overtime per week in her old job, she's entitled to return to an equivalent position that provides the same amount of overtime.<br /> <br /> So your choices are clear: You can give Patsy her old job back, or you can put her in an "equivalent position."<br /> <br /> Patsy's old job was on the day shift. I really want to keep Waylon on the day shift. When she returns from FMLA leave, can I assign her to the same job on the night shift and let Waylon keep his job on the day shift? Would the job on the night shift be an "equivalent position"?<br /> <br /> That question is close to call, but the answer is probably not. The FMLA regulations clearly state that Patsy is "ordinarily entitled to return to the same shift or to an equivalent work schedule."<br /> <br /> But different courts have resolved the issue differently -- and a few courts have held that employers didn't violate the FMLA when they restored employees who returned from FMLA leave to their original positions but on different shifts. The best approach is to play it safe: Give Patsy her old job on her old shift, and bump Waylon to the night shift.<br /> <br /> You just don't seem to get it, do you? I really want to keep Waylon where he is, and you're not helping me. What am I paying you for, anyway? But I've got a solution, Mr. Smarty-Pants Lawyer: I'll restore Patsy to her old job and to her same shift, but I'll do it at a different facility. Ha!<br /> <br /> Not so fast. When the FMLA says "equivalent," that's just what it means. Indeed, the Act provides that Patsy must be reinstated to a job at her previous work site or to one that is "geographically proximate" (i.e., one that "does not involve a significant increase in commuting time or distance") to her previous work site.<br /> <br /> So if you transfer Patsy to a position at another facility, make sure the transfer won't encumber her with significant increases in her commuting time or distance. Better yet, take our advice and give Patsy her old job back at her previous work site.<br /> <br /> <strong>Lot of leavin' left to do</strong><br /> Hmm. I think I'm getting your drift. Did I mention, though, that Patsy can no longer perform an essential function of her position as a result of the illness for which she took FMLA leave?<br /> <br /> That changes our analysis significantly. If Patsy can no longer perform an essential function of her job because of a physical or mental condition, she loses her right to be restored to her former position under the FMLA. But your obligations to her are now governed by the Americans with Disabilities Act (ADA), which means that if she has a disability, you must make reasonable accommodations to allow her to return to her job.<br /> <br /> I don't like where this is headed at all. What if I just terminate Patsy? How bad can the penalties be?<br /> <br /> Well, let us put it to you this way: If you terminate Patsy at this point, she will be able to sue you and ask the court for recovery under both the FMLA and the ADA. And while she can't get a "double recovery" for her damages, she can seek whatever damages against you are permissible under both statutes. That doesn't sound like fun, does it?<br /> <br /> While Patsy was out, we had a big drop-off in orders and had to lay off several employees in her department. If she had been here, she would have been laid off because of seniority. Do I still have to bring her back and bump someone else?<br /> <br /> No. The regulations don't require you to reinstate an employee who would have been terminated had she not been on leave. The trick is showing that Patsy would have been picked despite her leave  and seniority is an easy way to go. You can't choose to eliminate her job simply because she's out on leave at the time.<br /> <br /> <strong>When the leavin's over</strong><br /> Essentially, the FMLA requires you to restore the employee to her previous position or to an "equivalent position." The lawmaking policy behind that provision should seem self-evident: If employees feared that they would be asked to take a significantly different job with you after they returned from FMLA leave, they would be deterred from seeking leave to begin with.<br /> Remember that the FMLA is one of those laws in which most doubts are resolved in the employee's favor -- so your safest course is to do the same.<br /> <br /> <font size="1">Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from ALABAMA EMPLOYMENT LAW LETTER. The Alabama State Bar requires the following disclosure: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers."<br /> </font>