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Same or Equivalent: Placing Employees Returning from FMLA Leave

May 22, 2017

On May 16, 2017, the Fourth Circuit Court of Appeals issued a written opinion addressing two issues regarding the placement of returning employees.  The Court held that employers have a choice on whether to restore an employee returning from FMLA leave to the employee’s old position or to assign the employee to an “equivalent” one, which may give employers more flexibility in making staffing decisions.

Under the Family and Medical Leave Act (“FMLA”), employees who take leave are entitled when they return to be restored by their employer to (1) the position of employment held by the employee when the leave commenced; or (2) an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.  In Waag v. Sotera Defense Solutions, Inc., the Court held that the plain language in the FMLA shows that the employer had a choice of whether to return the employee to his prior position or to give him an equivalent job and nothing in the law requires that the employer give priority to either choice.

In Waag, the appellant was a high-level employee with a defense contractor.  After he went on leave, the company assigned his responsibilities to another manager.  When the employee was able to return, the company placed him in a different position with a different program, even though his prior position still existed and was being performed by his replacement. Six weeks after the employee returned to work, the company laid him off, but did not lay off the employee who had replaced him at his pre-leave position.  

The Court also provided additional guidance regarding what may be considered an “equivalent position.” In Waag, the appellant alleged that his post-leave position could not be considered equivalent to his pre-leave position.  Under the FMLA, an “equivalent position” is defined as, “one that is virtually identical to the employee’s former position, not only with respect to pay and benefits, but also working conditions, including privileges, perquisites and status. The new position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 

The Court noted that the employee’s pre-leave and post-leave positions had identical pay, bonuses, benefits, location, and titles, and that the focus of each position was on business development. The employee countered that his pre-leave position had many more responsibilities than business development that were not part of those included in his post-leave job description.  As proof, he pointed to an “action item” list that he created when in his pre-leave position containing additional responsibilities not related to business development he would perform in the event the company successfully bid for a contact.  The problem, the Court noted, was that these additional duties were conditioned on receiving a government contract, which did not occur.  The employee did not actually perform the duties in his “to-do list,” and would not have done so even if he had not taken leave. 

The employee also claimed that he lost prestige because he was part of the “core management” group prior to, but not after, his leave.  However, the Court noted that, even if this were true, the employee was unable to explain how this affected the actual terms and conditions of his employment. The Court found that any prestige lost by the employee was minimal because his job title remained the same.

Reading though the opinion, it is clear that the company was helped by the fact that it could justify the employee’s termination due to large declines in revenue.  The opinion shows, however, that an employer has a choice when assigning a position to an employee returning from FMLA leave. It also shows that despite the seemingly stringent “equivalent position” requirements, it is still possible under the FMLA to restore an employee returning from leave to a new position, which may provide employers more options when making staffing decisions.

Jeff Wilson is an attorney at Pender & Coward who focuses his practice on employment law, including counseling and business litigation. He can be reached at (757) 502-7341 or

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