(a) Equivalent position. 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) Conditions to qualify. 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 must
be granted in accordance with the employer's policy or practice with
respect to other employees on an equivalent leave status for a reason
that does not qualify as 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) Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent with
the provisions of paragraph (c)(1) of this section. However, if a bonus
or other payment is based on the achievement of a specified goal such
as hours worked, products sold or perfect attendance, and the employee
has not met the goal due to FMLA leave, then the payment may be denied,
unless otherwise paid to employees on an equivalent leave status for a
reason that does not qualify as FMLA leave. For example, if an employee
who used paid vacation leave for a non-FMLA purpose would receive the
payment, then the employee who used paid vacation leave for an FMLA-
protected purpose also must receive the payment.
(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) De minimis exception. 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, intangible, or unmeasurable aspects of the job.
[73 FR 68093, Nov. 17, 2008]
