FMLA-95 — Job Restoration Requirements

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

June 3, 1998 FMLA-95

Dear
Name*,

Your request for an interpretation of the application of the Family and Medical Leave Act of 1993 (FMLA)
has been referred to this office for a response. In your particular situation, the Office of the Sheriff
employs eight technical support telecommunication technicians who perform a variety of tasks. One of
these technicians is currently on FMLA leave. This particular technician has also received “extensive
specialized training and certification in audio/video enhancement for evidence analysis and testimony as
an expert witness. No other Telecommunication Technician in the unit has received comparable training
nor is qualified to perform these specialized functions.” You also state that, during the technician’s FMLA
leave, “the unit has experienced not only a backlog for video analysis, but also an increased demand for
these services internally and from other law enforcement entities.”

You pose five specific questions with regard to your obligations to provide FMLA leave and the
employee’s right to be restored to the same or an equivalent position.

Question 1
: Under what circumstances may an employer assert a ‘compelling business interest’ in
determining work redistribution or position restructuring involving employees on FMLA leave?

Answer 1
. The FMLA does not provide for an exception to its requirement to restore an employee to
the same or an equivalent position due to ‘compelling business interests.’ An employer may
redistribute the employee’s work, restructure positions, or take other actions during the employee’s
absences on FMLA leave, as required for the continued operation of the business. Regardless of
the action taken, the employer is required to restore the employee taking FMLA to the same or an
equivalent position as noted in Regulations, 29 CFR Part 825.214 and 825.216.

Question 2
: Although language in FMLA narrowly limits restoration exemptions to ‘highly
compensated employees’, does FMLA allow an expansion of those limits to circumstances where
reinstatement of the employee on leave to the employee’s original or equivalent would result in
‘undue hardship’ to the employer?

Answer 2
. The FMLA does not provide for any expansion of the exemption applicable to ‘certain
highly compensated employees’ for any reason.

Question 3
: Given the facts stated, management is faced with an increased workload with only one
employee certified to perform the tasks required. In this particular situation, would the
reorganization of tasks among the telecommunications technicians, without altering compensation
or benefits of the employee on FMLA leave, constitute a failure to return the employee to the same
or equivalent position?

Answer 3
. Regulations, 29 CFR Part 825.216(a), state in part that an “employee has no greater
right to reinstatement or to other benefits and conditions of employment than if the employee had
been continuously employed during the FMLA leave period.” If the reorganization was solely the
result of an increased workload and would have occurred had the employee continued to work, the
employer would not necessarily be required to restore the employee to the same or an equivalent
position. If, however, the reorganization was due solely to the reallocation of the employee’s work
while the employee was on leave, the employee would be entitled to be restored to the same or an
equivalent position. Only those terms and conditions of employment that would be considered de
minimis or intangible, immeasurable aspects of the job would not be considered in determining
whether the employer had complied with the FMLA requirements. (Regulations, 29 CFR 825.215(f))
Not having access to a company vehicle and diminished opportunities for overtime would not seem
to be de minimis, intangible, immeasurable aspects of the job.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

Question 4: The FMLA speaks clearly with regard to its prohibition against employer decisions that
diminish an employee’s employment status. Given the proposed management action, the task
redistribution would not diminish the employee’s status but rather enhance the employee’s
opportunity to assume greater responsibilities and authority. Would an enhanced position stay a
noncompliance issue?

Answer 4
. Upon returning to work an employer may offer an employee a position that differs from
the position that the employee had prior to starting FMLA leave. The employer may not, however,
induce the employee to accept a different position against the employee’s wishes. (Regulations, 29
CFR Part 825.215(e)(4))

Question 5
: If a ‘compelling business interest’ is successfully asserted, does the FMLA scrutiny
continue by evaluating the impact of that decision?

Answer 5
. There is no ‘compelling business interest’ exception under FMLA. As provided for under
FMLA and the regulations, a covered employer must grant FMLA leave, continue group health
coverage, and provide restoration to an eligible employee for those reasons cited in the statute.
Under certain circumstances, an employer may deny restoration to “certain highly compensated
employees.” (Regulations, 29 CFR 825.216(c) and 825.217)

I hope the above has fully addressed your concerns. I regret the lengthy delay in responding to your
request.

Sincerely,

Michelle M. Bechtoldt
Office of Enforcement Policy
Family and Medical Leave Act Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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