Category Archives: Reinstatement

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When an Employee Returns from FMLA Leave, What Does Same or Equivalent Position Actually Mean?

Do you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!] The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.   Returning an employee to the same position is easy enough to grasp.  The same is the same … Continue Reading

Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended

The Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  Not surprisingly, I often am asked by clients, “What is an ‘equivalent’ position?”  On their face, the FMLA regulations seem to be a bit unforgiving for employers, … Continue Reading

Requiring Employees to Return to Work With No Restrictions or To Be "100% Healed" is a Huge Risk for Employers

There must be something in the water.  Over the past few months alone, I have reviewed a number of employers’ policies and correspondence regarding an employee’s return to work from a leave of absence.  What has been surprising to me is the number of employer policies that require an employee to return from leave with “no … Continue Reading

DOL Extends Comment Period for Proposed FMLA Regulations to April 30, 2012

On February 15, the Department of Labor published proposed regulations to the Family and Medical Leave Act in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.  We summarized those changes here. Public comments originally were due by April 16, 2012.  However, … Continue Reading

Stephen Colbert Takes FMLA Leave to Care for Mom; Will His "Key Employee" Status under the FMLA Deny His Return to "The Colbert Report"?

According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, “The Colbert Report,” to attend to his ailing 91 year-old mother. Only a true FMLA nerd would use this as an opportunity to explain a little-used, often forgotten rule under the Family and Medical Leave … Continue Reading

DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave

On January 30, 2012, the U.S. Department of Labor announced proposed changes to Family and Medical Leave Act regulations (pdf) in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.  Rules for the first two have been expected for some time, … Continue Reading

Lessons From The Jewel-Osco / EEOC Settlement

On January 5, the EEOC announced a $3.2 million settlement in a lawsuit against Jewel-Osco parent company Supervalu Inc., alleging that Jewel-Osco fired disabled employees at the end of medical leaves rather than returning them to work with reasonable accommodations. (Details are available in the Chicago Sun Times, and the EEOC has issued its own … Continue Reading

Employer Properly Demoted Employee Upon Return from FMLA Leave

All too often, employers are criticized for blunders they could have avoided when taking disciplinary action against an employee with a medical condition.  However, a recent federal appellate court decision provides a glowing example of how an employer got it right when it disciplined an employee upon her return from leave under the Family and Medical Leave Act.  Last month, the … Continue Reading

Employer May Raise Defense that an Employee is Ineligible for FMLA Leave Even After Leave is Given

Does an employee have the right to take FMLA leave and be restored to the same or equivalent position even though the employer does not employ 50 employees and is not covered by the FMLA?  The answer may depend on the particular court hearing the case, as evidenced by a recent federal appellate court decision.  … Continue Reading