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Employer Has Duty to Return Employee Eligible for FMLA Leave to Equivalent Position

Written by: Previant Law Firm

The United States Court of Appeals for the Eighth Circuit recently addressed the issue of an employee’s rights to reinstatement following an absence eligible for leave under the Family and Medical Leave Act (FMLA). In Dollar v. Smithway Motor Xpress (8th Cir. March 27, 2013), the Court affirmed that an employer cannot lawfully fire an employee who is on short term medical leave for depression without considering whether the employee’s  leave was protected by the FMLA.

At issue in the case, was an employee with a history of severe depression.   When the employee began missing work, she provided doctor’s notes to the employer indicating that she would need to be on leave.  Despite being eligible for FMLA leave and providing notice to the employer that she was off of work due to a serious medical issue, the employer failed to treat her leave as eligible for FMLA.  The employer first reassigned the employee to another job, and then terminated her employment.

The federal Family and Medical Leave Act protects employees who are off work for a serious health condition and have worked for employer at least 1,250 hours in preceding 12 months, have been employed for at least 12 months and are employed at worksite by employer with 50 or more employees within 75 miles of that worksite.  Upon return from leave, an employee must be restored to his or her original job, or to an “equivalent” job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.

In Dollar, the employee’s depression was severe enough that she was no longer able to
perform the duties of the job she was performing at the time of her termination.  The Court stated that although FMLA does not impose a duty on an employer to reasonably accommodate the employee’s need for medical leave, “the FMLA duty of restoration clearly and expressly broadens the employer’s obligation beyond a narrow focus solely on the actual position held by the employee before onset of the serious health condition and extends to equivalent positions.”

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