Employer FMLA Reinstatement Obligations Clarified

July 10, 2017, 2:00 PM

On May 17, 2017 the Federal Court of Appeals sitting in Richmond ruled in Waag v. Sotera Defense Solutions, Inc. that an employee does not have to be returned to his or her original position after FMLA leave as long as the employee is placed in an equivalent position. The Court clarified that an employee who takes FMLA leave must be restored to either the employees original position or to an equivalent position. FMLAs restoration requirement has no preference for restoring employees to their original jobs over equivalent positions, nor does it require an employer to hold employees original positions open while they are on FMLA leave.

In this case, the plaintiff, Mr. Waag, worked for a defense contractor, Sotera, that provided technology products and services to federal agencies, and Mr. Waag managed a program called NexGen. After Mr. Waag severely injured his hand falling from the roof of his house, Mr. Waag took leave for several weeks, and while Mr. Waag was out, Sotera moved another employee into the NexGen program manager role. When Mr. Waag returned to work, Sotera placed Mr. Waag in a different role; he now reported to a different supervisor and would be working on a different program, although he kept his same rate of pay. A few months later, Mr. Waag was laid off after the federal budget sequestration went into effect and Sotera saw a drastic decrease in revenue.

The Court rejected Mr. Waags claims that Sotera had violated FMLA when Sotera declined to return Mr. Waag to his old job. Instead, it held that Mr. Waag did not have an absolute right to return to his original position and that Sotera had the option of placing Waag in a job equivalent to his original, pre-leave job. The Court also looked at Mr. Waags post-leave job and found it to be an equivalent position to his pre-leave job: Mr. Waags salary was the same in his new position, his benefits were the same, the worksite was the same, his title was the same, and his new duties and responsibilities were substantially similar to his original position.