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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U
(USERRA)
(Part 1 of 2)
April 4, 2006, Volume 8, No. 14
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U
(USERRA)
(Part 1 of 2)
What are your obligations to reinstate an employee who has been on a
leave of absence and is ready to work? The answer depends on the
type of leave taken. |
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THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U (USERRA)
(Part 1 of 2)
An alphabet soup of federal laws protects employees who take, and
then
subsequently return from, a leave of absence. The Family and Medical
Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), the
Americans with Disabilities Act (ADA), state workers' compensation
laws,
and military
leave laws all can impact the reinstatement rights of
employees returning from family, medical, pregnancy, childbirth, and
military leaves of absence. These laws dictate what jobs, pay,
benefits,
and even perquisites returning employees get.
It's tough for any employer to keep track of all of the obligations
imposed
by these laws. To help sort through the intricate details and
interactions,
this week's E-Tips provides an in-depth look at the requirements
mandated by the FMLA, the PDA, and the ADA.
Next week's E-Tips will focus on leave reinstatement under state
workers' compensation statutes and the Uniformed Services
Employment and Reemployment Rights Act (USERRA). In addition,
E-Tips will suggest five steps you can take to make sure you
reinstate
employees properly.
* An Overview of the FMLA's Reinstatement Requirements *
The FMLA allows eligible employees to take up to 12 weeks of leave
in a
12-month period for various family and medical reasons. Employers
with
50 or more employees and all schools and public agencies must comply
with the law. Eligible employees may take leave for the following
reasons: (1) for the birth and care of a newborn child of the
employee;
(2) in connection with the placement with the employee of a child
for
adoption or foster care; (3) to care for a spouse, child, or parent
who has
a serious health condition; or (4) when the employee is unable to
work
because of the employee's own serious health condition.
Employees returning from FMLA leave must be reinstated to their
former
position or another position with "equivalent employment benefits,
pay,
and other terms and conditions of employment." In addition, the
employee should be reinstated promptly, as demonstrated in Hoge v.
Honda of Am. Mfg., Inc., 384 F.3d 238 (6th Cir. 2004). In that case,
the
employer violated the FMLA when it took a month to reinstate a
worker
after she said she was ready to return to work. The Sixth Circuit
said
that if an employee can perform the essential functions of the job,
then
the right to reinstatement is triggered upon the employee's timely
request
to return from leave.
According to the FMLA regulations, 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. The position must involve the same or substantially similar
duties
and responsibilities, which require substantially equivalent skill,
effort,
responsibility, and authority.
For example, in Cooper v. Olin Corp., 246 F.3d 1083 (8th Cir. 2001),
the
Eighth Circuit Court of Appeals determined that "restoration of
salary,
title, and benefits does not necessarily constitute restoration to
the same
position (as required by the FMLA) when the job duties and essential
functions of the newly assigned position are materially different
from
those of the employee's pre-leave position."
In addition, you may not take away any previously accrued seniority
and
employment benefits from an employee who takes FMLA leave. At the
same time, however, you are not obligated to reinstate an employee
who
takes leave beyond the FMLA's 12-week entitlement. But, you still
must
comply with the terms of your organization's
leave policies, state
leave
laws (which may be more generous than the federal FMLA), and any
federal and state pregnancy and disability protections, discussed
below.
* Pay Increases and Bonuses under the FMLA *
A returning employee also is entitled to any unconditional pay
increases
that occurred during the FMLA leave period, such as cost of living
increases. However, the returning employee is not entitled to pay
increases based on seniority, length of service, or work performed,
unless you have a
policy or practice of granting those increases to
employees who are on unpaid leave.
According to the FMLA regulations, bonuses that are not based on
performance, such as for perfect attendance and safety, must be paid
to
an employee returning from FMLA leave if the employee continues to
meet the eligibility requirements of the program. For example, if an
employee had a perfect attendance record and took FMLA leave, the
employee cannot be disqualified from the program because of the time
spent on the FMLA leave.
In contrast, bonuses based on job-related performance, such as a
monthly production goal, do not have to be paid to an employee who
is
on FMLA leave during any part of the period for which the bonus is
computed, unless it is being paid to employees on other types of
leave.
* Denial of Reinstatement under the FMLA *
According to the FMLA regulations, you may deny reinstatement at the
end of an FMLA leave only in the following three situations:
1. If you can show an employee would not otherwise have been
employed at the time the employee requests reinstatement, such as
when an employee's position is eliminated in a workforce reduction
and
the employee had not been targeted because of the leave.
2. If the employee is unable to perform an essential function of the
position because of a physical or mental condition, including the
continuation of a serious health condition. (Note, though, that you
may
have other obligations under the ADA, as discussed below.)
3. If the employee is a highly compensated "key" employee whose
reinstatement is denied to prevent "substantial and grievous
economic
injury" to the employer's operations. As a practical matter, this
standard
is very difficult to meet. Also, although a key employee may not
qualify
for reinstatement, the employee is still entitled to take an FMLA
leave. |
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* The PDA and Reinstatement *
Employers, including those not covered by the FMLA or those that
have
employees who are not eligible for FMLA leave, also must comply with
the requirements of the PDA. That law amended Title VII of the Civil
Rights Act to cover pregnancy discrimination and applies to
employers
with 15 or more employees.
The PDA does not specifically require
pregnancy leaves or
reinstatement
after these leaves. However, the law does require that you treat
pregnant employees the same as other employees with temporary
medical conditions. Accordingly, you must permit an employee on
pregnancy leave to return to her job on the same basis as other
employees returning to work from temporary sick or disability leave.
If you treat female employees returning from pregnancy disability
leaves
differently from employees returning from leave for other temporary
medical disabilities, this treatment may be considered sex
discrimination.
For example, you cannot require medical certification from an
employee
returning from pregnancy leave if the same requirement does not
apply
to employees returning from other temporary disability leaves.
* The ADA and Reinstatement *
If your organization has 15 or more employees, you also should be
aware that the ADA may apply to your
reinstatement policies. Under
the
ADA, covered employers may have to provide a leave as an
accommodation for a disabled employee. A disabled employee who is
on leave as an ADA accommodation ordinarily is entitled to
reinstatement to the same job since the purpose of a reasonable
accommodation is to allow the employee to perform the essential
functions of that particular job. Note that this requirement is more
restrictive than the FMLA, which allows reinstatement to the same or
an
equivalent position.
If reinstatement to the same job is an undue hardship for the
employer,
you still may have to reinstate the employee to any available vacant
position the employee is qualified to perform. Further, you may have
an
additional duty to accommodate a disabled employee whose medical
condition has deteriorated during leave, if a reasonable
accommodation
is needed to enable the employee to perform the essential functions
of
the job.
Next week: Leave reinstatement under state workers' compensation
statutes and USERRA, plus five steps you can take to make sure you
reinstate employees properly. |
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