The Family Medical Leave Act (FMLA) is an important HR law affecting every business with at least 50 employees.

FMLA states that employers must return employees to the same or an equivalent position after returning from a qualifying FMLA leave. This leave can be used:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition
• to take medical leave when the employee is unable to work because of a serious health condition.

According to the Department of Labor, employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

An issue that often comes up when an employee returns after FMLA leave is what is an “equivalent position.” Often the employer is unable to hold the employee’s current position and will offer a similar position in its place. This position must be similar in all tangible ways. This means that the employee must receive the same title, pay, benefits, access to bonuses and access to advancement. The employer does not have to consider intangible issues such as supervisory duties or prestige.

Job restoration can be denied to an employee after FMLA leave if the employer would suffer “substantial and grievous” economic injury if they reinstate the employee. Additionally, job restoration can be denied to those salaried “key” employees among the highest paid 10 percent of employees working within 75 miles of the employer.