Ask a Lawyer - Archive

Can an employer provide me with any available shift once I return from FMLA instead of the shift I worked prior to being placed on FMLA?

When you return from FMLA, your employer has to return you to the same position previously held by you before taking leave under the FMLA or to a comparable position, with equivalent pay, benefits, and working conditions. (You can look at the portion of the FMLA that discusses this - it's at 29 U.S.C. § 2614(a)(1)). The FMLA regulations state that to be an equivalent position to the one the employee left, the employee's new position must be virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Whether a new shift is a "comparable" position, or whether it is "virtually identical" is is question that courts may disagree about, so there is no easy answer. If the shift that you were put back in is much worse for you - maybe because of childcare responsibilities or some other responsibilities, then it may not be comparable.