Answer: Yes. The employer restored the employee to an "equivalent position" within the meaning of the FMLA, ruled a federal district court in Alabama. Because the employee returned from leave precisely where she left, her employer was entitled to judgment as a matter of law.
The only difference between the employee's current employment conditions and those she enjoyed when she went on leave was that the Baylor plan was no longer in effect. In that regard, the employer's decision to eliminate the Baylor plan was approximately equivalent to eliminating a shift. FMLA regulations specifically state, "if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration." 29 C.F.R. §825.216(a)(2). Accordingly, the employee was entitled only to be restored to her former position on the "equivalent" terms offered by her employer. Otherwise, declared the court, the employee would have "greater benefits" than those to which she "would have been entitled had she never taken ... leave."
Under the FMLA, an employee returning from leave does not have the right to return to the same position, although an employee would ordinarily be returned to his or her prior position if that position remains available. While a returning employee’s rights are no greater than they would have been if FMLA leave had not been taken, it is the employer who must establish the extent of those rights. A restored employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."
Cite: Roshetko v Beverly Enterprises-Alabama, Inc. (SDAla 1999), No 98-0101-BH-S, 137 LC 33,841.
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