Restoration And Reasonable Accommodation Under Current Leave Laws

The FMLA requires that an employee returning from FMLA leave be reinstated to the same or equivalent position. “Equivalent“ means equivalent pay, benefits, and terms and conditions of employment. The DOL's regulations clarify that “the employee is ordinarily entitled to return to the same shift or the same or equivalent work schedule“. This rule is intended to ensure that an employer does not “reinstate“ an employee to a position with a significantly different work schedule which could create a significant hardship for the employee. However, the regulations also allow for the employer to reinstate the employee to a different shift, schedule, or position which better suits the employee's personal needs on return from leave. But the regulations caution that the employer cannot force an employee to accept a different position against the employee's wishes. Under the ADA and PWFA, an employer must consider reasonable accommodations for qualified employees, including job restructuring and/or a modified work schedule. But the general rule also suggests that reasonable accommodations be considered for the original position before considering an “alternative“ position (which a different shift, schedule, or position would be considered). The goal of both statutes is to keep workers on the job. Whenever an HR Generalist encounters a situation in which an employee with a disability or an employee affected by pregnancy, childbirth, or related conditions is returning from leave that is FMLA-qualifying, the following human resources compliance process should be followed:

• First determine whether the employee can be reinstated to exactly the same position held prior to the leave without reasonable accommodation. If this is possible, do so.
• If a reasonable accommodation would be necessary for reinstatement, then first consider accommodations to the job the employee held immediately prior to the leave – i.e., changes to the way in which work is done in the original position. If this is possible, provide the accommodation in this way.
• If this is not possible, or would cause an undue hardship, then consider other possible accommodations such as different shifts, schedules, or positions in accordance with labor law.

Note: This is an excerpt from our FMLA Training & Certification Program.