Employees taking leave under the Family and Medical Leave Act (FMLA) are entitled to be reinstated to their previous job or to an equivalent position. The equivalent position must be the substantially the same in terms of salary, benefits, reporting responsibilities and opportunities for advancement. Most employers simply hold the employee’s current job open during leave to avoid disputes over equivalency. However, on Tuesday, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reminded employers of their option to return the employee on leave to a different position.

In Waag v. Sotera Defense Solutions, Inc., the plaintiff worked for a defense contractor in a business development role. He severely injured his hand and took FMLA leave. Given the critical need for someone in his position, the employer assigned a co-worker to that particular contract. However, shortly after this assignment, federal government sequestration caused an extended delay in the contract award. The new employee assigned to this project only spent a fraction of his working time covering the plaintiff’s former duties.

Upon return from leave, the employer reinstated the plaintiff to another business development job on a different project, with the same pay, and at the same level on the company’s organizational chart. A few months after his return, the plaintiff was one of 14 employees and managers laid off in his division. The employee who took over his pre-leave duties was not laid off. The plaintiff sued, claiming interference with his right to reinstatement under the FMLA.

The Fourth Circuit disagreed, affirming dismissal of his claims on summary judgment. The court rejected the plaintiff’s contention that the FMLA requires reinstatement to the original position after leave unless that position has been eliminated. The statute’s plain language makes clear that the employer has the option of restoring the employee to his prior job or reassigning him to an equivalent position. There is no legal preference for reinstatement over reassignment.

In this case, the Fourth Circuit agreed that the alternative position was equivalent to the one the plaintiff held prior to taking FMLA leave. The court refused to apply a test that would view equivalent as excluding de minimis differences between the two positions. If pay, title and duties are substantially similar, the jobs will be considered equivalent. The plaintiff was not immune from selection for layoff. The FMLA does not protect employees from job consequences unrelated to their taking leave.

This decision reminds employers that they have some flexibility with regard to replacing employees in crucial positions who take FMLA leave. While this critical need does not give the employer an excuse not to reinstate the worker, transferring him or her to a similar job even if it is not exactly the same, can satisfy the FMLA’s reinstatement obligations.