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How To Ensure That You Return To Your Original Job Instead Of An Equivalent


When you return from FMLA leave, your employer is required to restore you to your previous position or to an equivalent position with equivalent pay and benefits. There are exceptions if you are a key employee.

Assuming that you would prefer not to be given an equivalent position, there are a number of things that you can do to prevent your position from being given to someone else during your absence:

  1. From the moment that you make a request for leave until your return to work, resist treating your employer as an adversary. Doing so is likely to result in your employer simply looking out for the employer's best interests without regard to you.
  2. If at all possible, get your work up-to-date prior to your leave. Straighten up your work area. If an employer hears from others that your work is behind or that your desk is a mess when you start leave, you may be in less of a position to bargain.
  3. Before you go on leave, offer to "show someone the ropes," or make a list of "tips" for performing the functions of your position and give it to a supervisor or other appropriate person. Indicating to your employer that you are willing to make every effort you can to prevent a major disruption during your absence can score a lot of points with both your employer and your co-workers.
  4. Let your employer or co-workers know if you will be available in the event of an emergency or even if they just need your advice.
  5. Even if you are unable to follow some of the above suggestions due to your condition, simply state to your employer that you wish to do all that you can to prevent a major disruption.

NOTE: If you accept a light duty assignment while recovering from a serious health condition, you are not considered to be on FMLA leave. The time you spend working light duty assignments cannot be counted against your 12 weeks of annual job protected FMLA leave for your FMLA reinstatement rights. The result is that if you are doing a light duty assignment at the end of the 12-month leave year period that your employer uses to calculate FMLA leave, you will lose your right to restoration to your regular job after the end of the year. For example, if your employer uses a calendar year as the 12 month leave year, if you are still doing light duty on December 31, as of January 1 you will not have a right to be reinstated to your original job.


                                                                                                      Reviewed and edited by Lisa Gerson, Esq.
                                                                                                      McDermott Will & Emery LLP
                                                                                                      340 Madison Avenue
                                                                                                      New York, New York 10173-1922

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FMLA, Key Employees

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