Job Protection: What Does It Really Mean?

By Lori Welty, JD

Absence Management, Sr. Compliance Attorney
FINEOS

It happens every day: An employee calls in with an absence and asks, “Can I take time off without being fired?” or “Will this absence count against me?”

Whether an absence is job-protected is critical to an employee’s and employer’s understanding of the consequences of a leave. Most of the common laws that support a leave of absence — the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state paid family and medical leaves, for example — contain explicit job protection, though the details of that obligation vary. But what is the point of providing a leave of absence without job protection? What does it mean if an employer (or a legislature) says, “Here are your leave rights. but keep in mind that if you take them, you may not have a job waiting upon your return.” Without clearly defined job protection, is the right to take a leave really a right at all?

The FMLA and the ADA

The courts have agreed that for the FMLA, the right to reinstatement is central. For example, “the FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation that an employee will return to work after the leave ends” (Throneberry v. McGehee Desha County Hosp., 403 F.3d 972 [8^th Cir. 2005]).

When employees return from FMLA leave, they must be restored to the same or “equivalent job.” According to the U.S. Department of Labor (DOL)¹ and FMLA regulations², an employee is not guaranteed the actual job held prior to the leave. An equivalent job is virtually identical to the original job in terms of pay, benefits, working conditions, and privileges and must entail substantially equivalent skill, effort, responsibility, and authority.

Courts will tease out the details, but the bottom line is that if an employee is restored to a different job, all aspects of the job must be equal or more beneficial to the employee. Of course, there are times when circumstances have changed during the leave, making reinstatement impossible. For example, if a shift has been eliminated or the company experienced a bona fide layoff, the employee isn’t entitled to preferential treatment over employees who weren’t on leave. There are other exceptions to job restoration under the FMLA, including:

the employee is no longer able to perform an essential function of the job;
the employee failed to provide a fitness-for-duty certificate to return to work;
the employer discovers legitimate grounds for termination while the employee is on leave;
the employee is a “key” employee, under certain circumstances; and
the employee was hired for a specific term or project that has concluded.

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