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Can I Be Given A New Position After Taking FMLA? I Need The Best Attorney Answer!

On Behalf of | Dec 16, 2014 | Family Medical Leave Claims |

Best Ohio FMLA Lawyer Reply: I’m returning from FMLA leave and my boss said my job is gone; can my company do that? Can my manager give me different duties after I return from FMLA if she gives me the same title and pay? Can I be transferred to a new department after taking FMLA?

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The Family Medical Leave Act (“FMLA”) provides protected leave from employment to care for the serious health condition of a spouse, the birth of a newborn child, serious health condition of a minor child or incapacitated adult child, and for the employee’s own serious health condition.

Employees who qualify and request FMLA leave are entitled to get up to 12 weeks of job protected leave to use as medically necessary. (Am I eligible for FMLA? Click her to find out.) But once your 12 weeks of FMLA leave is exhausted, you boss may legally fire you for failing to return from leave. It seems very clear, take leave and return to your job or lose it. If you come back after 12 weeks, it is at the whim of you manager or supervisor. Your company can fire you, or if your boss let’s you come back, it can be at any position on any shift at any rate – just as if you were a new employee. What happens if you come back from leave without exhausting your 12 weeks of protected leave and your boss has a new job for you or you’ve been replaced by another employee?

Under the FMLA, once you return from leave, your employer must provide either your same job you had before you left for leave or one that is nearly identical. The factors to consider when evaluating whether or not your new position is comparable to your old position including the following:

  1. Whether the job involves the same or substantially similar duties, responsibilities, and status;
  2. Same skill, effort, responsibility and authority;
  3. Must have identical pay, including premium pay, overtime, and bonus opportunities;
  4. Offer identical benefits (ex. Life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.; and
  5. Same general schedule and nearby location.
Who is the best FMLA lawyers in Ohio? Call Brian Spitz and the employment law attorneys at Spitz, The Employee’s Law Firm to find out about your FMLA rights and potential claims during a free initial consultation.

The only exception to the rule above are for key employees, which are employees who are salaried, FMLA eligible, earn among the top ten percent in income among other employees working in a seventy-five mile radius of the employer. Therefore, a CEO of a small company with fifty-one employees who earns the most money out of all the employees may not be entitled to reinstatement to the same position after taking FMLA leave.

But, assuming that you are not a CEO or a key employee of a small company, you should get you job back upon returning from FMLA. This does not mean just getting your title and same level of pay back. Let’s look at an example where simply giving an employee the same title and pay was not enough. In Cooper v. Olin Corporation, Winchester Division, the Eight Circuit Court of Appeals reversed the trial court’s dismissal of Linda Cooper’s FMLA retaliation case. Cooper worked as a locomotive engineer for Olin. While working for Olin, Cooper was diagnosed with depression, which qualified as a “serious health condition” under FMLA and took leave. Within her 12 weeks of leave, Coopper returned to work with medical clearance from her doctors to resume full job duties. Olin restored Cooper to her job title, classification, pay, and benefits when she returned but, refused to allow her to operate a locomotive while it allegedly independently sought to determine her fitness to do that job. The Court of Appeals held:

Although a health care provider employed by the employer may, with the employee’s permission, contact the employee’s care provider for clarification of the restoration certification, the employer may not delay the employee’s return to work while contact is being made. …

Cooper does not dispute that she continued to retain to work at Olin. Cooper contends that because the duties and functions of her office assignment were so much different from those of a locomotive engineer, she was not reinstated to the same position within the meaning of FMLA. She also argues that to any extent that an inquiry into her fitness for duty is permitted, it never occurred. Olin argues that it did return Cooper to her job within the meaning of FMLA because the pay and benefits were the same and that it could properly restrict her duties while evaluating her fitness for duty.

The first question, then, is whether Cooper’s return to work with the title and wages of a locomotive engineer but the job duties of an office assistant constituted restoration to the position of employment she held when she took leave… [R]estoring the employee to an equivalent position–requires both that the new position come with equivalent benefits and terms and that it be an “equivalent position,” indicating that the duties and functions of the job, as well as the pay, terms, and benefits, are to be considered. … Accordingly, the restoration of salary, title, and benefits does not necessarily constitute restoration to the same position within the meaning of section 2614(a)(1)(A) when the job duties and essential functions of the newly assigned position are materially different from those of the employee’s pre-leave position.

Regarding the question of fitness for duty, Olin does not dispute that in November and December of 1996, and in January of 1997, Cooper reported to Olin’s medical department with releases from her health care providers, Dr. Morris and Peltz, that unambiguously stated that she could return to work without restriction. Indeed, Dr. Morris’s December 11 letter notes that Cooper’s position was that of a locomotive engineer. At this point, Olin had a right, with Cooper’s permission, to seek clarification from her health care providers about these certification statements, which may have, in essence, rebutted the certification. … For whatever reason, whether it was the result of a failure of communication or of bureaucratic bungling, Olin did not follow through and obtain such clarification. In the meantime, Cooper was entitled to be restored to her position or to an equivalent position. Inasmuch as Cooper was not returned to her position, on remand the fact-finder must determine whether Cooper’s office assignment was an equivalent position within the meaning of FMLA. “Equivalent” under FMLA means “that which is substantially equal or similar, not necessarily identical or exactly the same. The employer may take into account the employee’s physical capabilities in determining the equivalent work and compensation involved.” Watkins v. J & S Oil Co., Inc., 164 F.3d 55, 59 (1st Cir. 1998); see also 29 C.F.R. 825.215(a) (“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. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”)… The grant of summary judgment dismissing Cooper’s FMLA claim is reversed, and the case is remanded to the district court for further proceedings.

If you’re returning from FMLA and your boss is making you take a pay cut or a drastic change in responsibilities, you may have a claim for FMLA retaliation. If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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