Sec.31-51qq-23. What is an equivalent position?

(a) An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It shall involve the same or substantially similar duties and responsibilities, which shall entail substantially equivalent skill, effort, responsibility, and authority.

(b) If an employee is no longer qualified for the position because of the employee’s inability to, for example, attend a necessary course, renew a license, or fly a minimum number of hours, as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon return to work.

(c) Equivalent pay.

(1) An employee is entitled to any unconditional pay increases which may have occurred during the FMLA leave period, such as cost of living increases. The employer shall grant pay increases conditioned upon seniority, length of service, or work performed in accordance with the employer's policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave. An employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential. If an employee departed from a position averaging ten (10) hours of overtime and corresponding overtime pay each week, an employee is ordinarily entitled to such a position on return from FMLA leave.

(2) Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary, made to employees consistent with the provisions of subdivision (1) of this subsection. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also shall receive the payment.

(d) Equivalent Benefits. “Benefits” include all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer through an employee benefit plan as defined in the Employee Retirement Income Security Act of 1974, 29 USC 1002(3).

(1) At the end of an employee's FMLA leave, an employer shall resume providing benefits in the same manner and at the same levels as provided when the leave began, and subject to any changes in benefit levels that may have taken place during the period of FMLA leave affecting the entire workforce, unless otherwise elected by the employee. An employer shall not require an employee upon return from FMLA leave to requalify for any benefits the employee enjoyed before FMLA leave began, including family or dependent coverages. For example, if an employee was covered by a life insurance policy before taking leave but is not covered or coverage lapses during the period of unpaid FMLA leave, the employee cannot be required to meet any qualifications, such as taking a physical examination, in order to requalify for life insurance upon return from leave. Accordingly, some employers may find it necessary to modify life insurance and other benefits programs in order to restore employees to equivalent benefits upon return from FMLA leave, make arrangements for continued payment of costs to maintain such benefits during unpaid FMLA leave, or pay these costs subject to recovery from the employee on return from leave.

(2) An employee is entitled to accrue any additional benefits or seniority during unpaid FMLA leave if the employer’s policy provides that other employees on unpaid leave are entitled to such accrual of benefits or seniority. Benefits accrued at the time leave began (e.g., paid vacation, sick or personal leave to the extent not substituted for FMLA leave) shall be available to an employee upon return from leave.

(e) Equivalent Terms and Conditions of Employment. An equivalent position shall have substantially similar duties, conditions, responsibilities, privileges and status as the employee’s original position.

(1) The employer shall reinstate the employee to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. If the employee’s original worksite has been closed, the employee is entitled to the same rights as if the employee had not been on leave when the worksite closed. For example, if an employer transfers all employees from a closed worksite to a worksite in a different city, the employee on leave is also entitled to transfer under the same conditions as if he or she had continued to be employed.

(2) The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.

(3) The employee shall have the same or an equivalent opportunity for bonuses, profit- sharing, and other similar discretionary and non-discretionary payments.

(4) FMLA does not prohibit an employer from accommodating an employee’s request to be restored to a different shift, schedule, or position which better suits the employee’s personal needs on return from leave, or to offer a promotion to a better position. However, an employer may not induce an employee to accept a different position against the employee’s wishes.

(f) The requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis or intangible, unmeasurable aspects of the job. However, restoration to a job slated for layoff when the employee’s original position is not, would not meet the requirements of an equivalent position.

(Adopted effective March 9, 1999; Amended August 3, 2022)