According to the Family and Medical Leave Act, an employee returning from leave must be restored to his or her original job, or to an “equivalent” job position.  Department of Labor regulations state that an equivalent job has the same pay, benefits and other terms and conditions of employment, but does not have to match de minimis or intangible aspects of employment.  A recent unpublished decision from the Fourth Circuit Court of Appeals (which includes North and South Carolina) looks into what job factors are material, and which are deemed intangible under the FMLA.  The case was filed by an IT manager who left work on FMLA for hip surgery.  Soon after his return from leave, the plaintiff’s position was eliminated, and he was shifted to different duties that involved the same pay, benefits, seniority and job title.  He sued, alleging that his employer failed to reinstate him to an equivalent position because the new job was less visible and prestigious within the organization.

The Fourth Circuit affirmed dismissal of the claim on summary judgment.  The court stated that the plaintiff’s subjective perceptions of the differences between the two jobs are exactly the types of intangible factors excluded from the definition of equivalent position.  The plaintiff could point to no concrete, measurable aspects of the two jobs that differed.  Employers are often hesitant to explore the possibility of moving employees on FMLA leave, preferring to keep the original position open.  While this may be the most practical solution in most cases, this decision demonstrates than employers have some flexibility to create new positions for employees when reinstatement to the original job does not make business sense.