The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 213
The FMLA provides employees with job-protected leave, and that
includes the legal right to be reinstated to the same or an equivalent
position once leave ends, unless an exception applies. The right
to reinstatement gives meaning to the right to take leave: It ensures that
employees will have jobs to return to once their time off is through.
This chapter will help you manage an employee’s return to work. It covers
every aspect of reinstatement, including what position you must restore the
employee to, deadlines for reinstatement, how to handle employee benefits
when an employee returns to work, and exceptional circumstances when you
might not be legally required to reinstate an employee. It also explains your
company’s rights if an employee cannot—or decides not to—return to work
after using up his or her allotment of FMLA leave.
The Basic Reinstatement Right
An employee must be reinstated to his or her former position or an equivalent
position upon returning from FMLA leave. Although there are a few situations
when an employee’s right to reinstatement might be limited (see “When
Reinstatement Might Not Be Required,” below), these cases are the exception
rather than the rule. The employee is entitled to be reinstated even if your
company made changes to accommodate the employee’s absence—for example,
by replacing the employee or restructuring his or her job.
What Is an Equivalent Position?
Although you are legally required to reinstate an employee returning from
FMLA leave, that doesn’t mean the employee has a right to be put back in
exactly the same position he or she held before taking time off. Employers
may reinstate the employee to his or her former position or to an equivalent
position. In practice, however, this doesn’t give employers much leeway: The
equivalent position must be “virtually identical,” in every important respect,
to the employee’s former position. (29 C.F.R. § 825.215.)