(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.
(b) If an employee is no longer qualified for the position because
of the employee's inability to attend a necessary course, renew a
license, fly a minimum number of hours, etc., as a result of the leave,
the employee shall be given a reasonable opportunity to fulfill those
conditions upon return to work.
(c) Equivalent Pay. (1) An employee is entitled to any unconditional
pay increases which may have occurred during the FMLA leave period, such
as cost of living increases. Pay increases conditioned upon seniority,
length of service, or work performed would not have to be granted unless
it is the employer's policy or practice to do so with respect to other
employees on ``leave without pay.'' In such case, any pay increase would
be granted based on the employee's seniority, length of service, work
performed, etc., excluding the period of unpaid FMLA leave. An employee
is entitled to be restored to a position with the same or equivalent pay
premiums, such as a shift differential. If an employee departed from a
position averaging ten hours of overtime (and corresponding overtime
pay) each week, an employee is ordinarily entitled to such a position on
return from FMLA leave.
(2) Many employers pay bonuses in different forms to employees for
job-related performance such as for perfect attendance, safety (absence
of injuries or accidents on the job) and exceeding production goals.
Bonuses for perfect attendance and safety do not require performance by
the employee but rather contemplate the absence of occurrences. To the
extent an employee who takes FMLA leave had met all the requirements for
either or both of these bonuses before FMLA leave began, the employee is
entitled to continue this entitlement upon return from FMLA leave, that
is, the employee may not be disqualified for the bonus(es) for the
taking of FMLA leave. See Sec. 825.220 (b) and (c). A monthly production
bonus, on the other hand does require performance by the employee. If
the employee is on FMLA leave during any part of the period for which
the bonus is computed, the employee is entitled to the same
consideration for the bonus as other employees on paid or unpaid leave
(as appropriate). See paragraph (d)(2) of this section.
(d) Equivalent Benefits. ``Benefits'' include all benefits provided
or made available to employees by an employer, including group life
insurance, health insurance, disability insurance, sick leave, annual
leave, educational benefits, and pensions, regardless of whether such
benefits are provided by a practice or written policy of an employer
through an employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
(1) At the end of an employee's FMLA leave, benefits must be resumed
in the same manner and at the same levels as provided when the leave
began, and subject to any changes in benefit levels that may have taken
place during the period of FMLA leave affecting the entire workforce,
unless otherwise elected by the employee. Upon return from FMLA leave,
an employee cannot be required to requalify for any benefits the
employee enjoyed before FMLA leave began (including family or dependent
coverages). For example, if an employee was covered by a life insurance
policy before taking leave but is not covered or coverage lapses during
the period of unpaid
FMLA leave, the employee cannot be required to meet any qualifications,
such as taking a physical examination, in order to requalify for life
insurance upon return from leave. Accordingly, some employers may find
it necessary to modify life insurance and other benefits programs in
order to restore employees to equivalent benefits upon return from FMLA
leave, make arrangements for continued payment of costs to maintain such
benefits during unpaid FMLA leave, or pay these costs subject to
recovery from the employee on return from leave. See Sec. 825.213(b).
(2) An employee may, but is not entitled to, accrue any additional
benefits or seniority during unpaid FMLA leave. Benefits accrued at the
time leave began, however, (e.g., paid vacation, sick or personal leave
to the extent not substituted for FMLA leave) must be available to an
employee upon return from leave.
(3) If, while on unpaid FMLA leave, an employee desires to continue
life insurance, disability insurance, or other types of benefits for
which he or she typically pays, the employer is required to follow
established policies or practices for continuing such benefits for other
instances of leave without pay. If the employer has no established
policy, the employee and the employer are encouraged to agree upon
arrangements before FMLA leave begins.
(4) With respect to pension and other retirement plans, any period
of unpaid FMLA leave shall not be treated as or counted toward a break
in service for purposes of vesting and eligibility to participate. Also,
if the plan requires an employee to be employed on a specific date in
order to be credited with a year of service for vesting, contributions
or participation purposes, an employee on unpaid FMLA leave on that date
shall be deemed to have been employed on that date. However, unpaid FMLA
leave periods need not be treated as credited service for purposes of
benefit accrual, vesting and eligibility to participate.
(5) Employees on unpaid FMLA leave are to be treated as if they
continued to work for purposes of changes to benefit plans. They are
entitled to changes in benefits plans, except those which may be
dependent upon seniority or accrual during the leave period, immediately
upon return from leave or to the same extent they would have qualified
if no leave had been taken. For example if the benefit plan is
predicated on a pre-established number of hours worked each year and the
employee does not have sufficient hours as a result of taking unpaid
FMLA leave, the benefit is lost. (In this regard, Sec. 825.209 addresses
health benefits.)
(e) Equivalent Terms and Conditions of Employment. An equivalent
position must have substantially similar duties, conditions,
responsibilities, privileges and status as the employee's original
position.
(1) The employee must be reinstated to the same or a geographically
proximate worksite (i.e., one that does not involve a significant
increase in commuting time or distance) from where the employee had
previously been employed. If the employee's original worksite has been
closed, the employee is entitled to the same rights as if the employee
had not been on leave when the worksite closed. For example, if an
employer transfers all employees from a closed worksite to a new
worksite in a different city, the employee on leave is also entitled to
transfer under the same conditions as if he or she had continued to be
employed.
(2) The employee is ordinarily entitled to return to the same shift
or the same or an equivalent work schedule.
(3) The employee must have the same or an equivalent opportunity for
bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
(4) FMLA does not prohibit an employer from accommodating an
employee's request to be restored to a different shift, schedule, or
position which better suits the employee's personal needs on return from
leave, or to offer a promotion to a better position. However, an
employee cannot be induced by the employer to accept a different
position against the employee's wishes.
(f) The requirement that an employee be restored to the same or
equivalent job with the same or equivalent pay, benefits, and terms and
conditions of employment does not extend to de minimis or intangible,
unmeasurable
aspects of the job. However, restoration to a job slated for lay-off
when the employee's original position is not would not meet the
requirements of an equivalent position.
