Prefer the Temp Worker? Understanding FMLA Reinstatement

Say a worker is on leave and you like a (higher performing) temp worker. Is it legal to keep the temp worker instead? Reinstatement rights...



It’s a familiar workplace situation. A company has an employee, Jonie, who is well-liked by management. There are no documented performance problems and Jonie’s performance evaluations are always positive. From an outside perspective, Jonie is a model employee.

Jonie goes out on federal family medical leave (FMLA), and the company hires a temporary employee (Jonie 2.0) to fill the position. In Jonie’s absence, Jonie 2.0 excels in the position. She is more efficient than Jonie, she makes fewer mistakes, and she turns in a better work product. After a few short weeks, the company learns that Jonie was not performing all of her assigned duties, while Jonie 2.0 easily completes the assigned tasks and has time to help others.

As time passes and more of Jonie’s shortcomings are uncovered, the company finds itself more and more displeased with Jonie as an employee and more enamored with Jonie 2.0. Now, with Jonie’s return to work eminent, the company wants to terminate Jonie for poor performance and upgrade to Jonie 2.0.

What should the company do?

Before giving into temptation, the company must remember that the FMLA gives Jonie certain reinstatement guarantees. Prior to taking any action against Jonie, the company must familiarize itself with its reinstatement obligations under the FMLA.

Upon return from FMLA leave, Jonie must be restored to her original job, or to an "equivalent" job. While this seems to imply the company can retain Jonie 2.0 and simply place Jonie in an “equivalent” position, it is not that simple.

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and other terms and conditions of employment. The equivalent position must have virtually identical job duties, working conditions, responsibilities, privileges, and status as the employee's original position.

With these restrictions, it is clear that the company does not have much flexibility returning Jonie to a different position. The mere fact that the new position offers the same pay, benefits, and even title as the old position is not sufficient to meet the “equivalent position” standard if the job itself is different. For example, if the new position requires different skills, eliminates skills previously required, offers fewer opportunities for advancement, and/or includes different duties, there is a risk that the position would not meet the standard.

What is the best course of action? FMLA reinstatement requirements

The company should not give into the temptation and “upgrade” to a newer model. Instead, Jonie should be restored to her former position and held accountable for her performance deficiencies. Upon her return from leave, the company should meet with Jonie and talk about the problems that were discovered during her absence. The company should place Jonie on a performance improvement plan and Jonie should be given a fair opportunity to correct her performance.

For more information or questions about how to handle sticky HR situations, please contact our experts at

Note: Although this article focuses on FMLA reinstatement rights, employers must review obligations under all applicable state and federal laws before taking any action regarding an employee’s reinstatement.

Source: (reposted with permission)


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