Q: I had knee surgery, and have been out of work on disability for 7 weeks. I drive a delivery truck, and have had the same route for several years now. My employer is saying that when I come back to work in two weeks, they’re putting me on a different route. I don’t want a different route, I want to go back to my usual customers. I thought under FMLA, my job was protected for 12 weeks. Are they allowed to move me to a different route?
A: The Family and Medical Leave Act (FMLA) entitles workers to take up to 12 weeks of unpaid leave during a 12-month period for certain medical or family reasons. This leave is available to employees for the birth or adoption of a new child; to care for an ill parent, child or spouse; or for any serious health condition that makes the employee unable to perform his job duties. Longer periods of leave are available to employees to care for a servicemember with a serious illness or injury. FMLA also ensures that employees are able to keep their health insurance and other benefits while they are unable to work. To be eligible for FMLA protections, the employee must have been with their employer for at least 12 months, and worked at least 1,250 hours over the preceding 12 months. The employee must work at a location that has 50 or more employees within 75 miles. If your company does not have at least 50 employees in the area, FMLA does not protect your job.
Upon return from FMLA leave, an employee must be reinstated to his or her original job. If that job is not available, the employee must be assigned an equivalent position (29 CFR 825.214). This means the new position must offer equivalent pay, benefits, and job classification as the prior position. An equivalent position does not have to have the identical duties, but must offer similar working conditions, including levels of authority, responsibility, and privileges (29 CFR 825.215). Generally, an equivalent position will be in a geographically similar location, with a similar shift or schedule. For more information about what is considered an equal position, see http://webapps.dol.gov/elaws/whd/fmla/9e2.aspx.
Unforutnately, if your new route meets the guidelines, then it is probably considered an “equivalent” position for the under FMLA.