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Family and Medical Leave Act Advisor

Equivalent Position and Benefits

An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. If an employee is no longer qualified for the position because he or she is unable to attend a necessary course, renew a license, fly a minimum number of hours, etc. as a result of the leave, the employee should be given a reasonable opportunity to fulfill those requirements upon return to work.

Equivalent Pay
Equivalent pay includes a bonus or other payment made to employees. Whether an employee on FMLA leave is entitled to a bonus depends on whether employees on other similar types of leave receive the bonus. For example, if an employee is substituting accrued annual leave and other employees on annual leave receive the bonus, the employee on FMLA leave should receive the bonus as well. 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 non-FMLA leave status.

An employee is also entitled to any unconditional pay increases that may have occurred during the FMLA leave period, such as cost of living expenses. Pay increases conditioned upon seniority, length of service or work performed must be granted 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 the same or equivalent pay premiums, such as a shift differential and, ordinarily, the opportunity for overtime hours (and overtime pay).

Equivalent Benefits
"Benefits" include all benefits provided or made available to employees by an employer, such as:

  • Group life insurance
  • Health insurance
  • Disability insurance
  • Sick leave
  • Annual leave
  • Educational benefits
  • Pensions

At the end of an employee's FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began, subject to any changes in benefit levels that may have taken place during the leave affecting the entire workforce, unless otherwise elected by the employee.

Upon return from FMLA leave, an employee cannot be required to re-qualify for any benefits he or she enjoyed before the leave began. 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; to make arrangements for continued payment of costs to maintain such benefits during unpaid FMLA leave; or to pay these costs subject to recovery from the employee on return from leave.

Benefits accrued at the time leave began must be available to an employee upon return from leave. An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.

If while on unpaid FMLA leave an employee desires to continue life insurance, disability insurance or other types of benefits for which he or she typically pays, the employer is required to follow established policies or practices for continuing such benefits for other instances of leave without pay. If the employer has no established policy, the employee and the employer are encouraged to agree upon arrangements before FMLA leave begins.

Any period of unpaid FMLA leave cannot be treated as a break in service for purposes of vesting and eligibility to participate in pension and other retirement plans. If the plan requires an employee to be employed on a specific date in order to be credited with a year of service for vesting, contributions or participation purposes, an employee on unpaid FMLA leave on that date will be deemed to have been employed on that date. Unpaid FMLA leave periods, however, need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate.

Other Terms and Conditions
An equivalent position must have substantially similar duties, conditions, responsibilities, privileges and status as the employee's original position. For example:

  • The employee must be reinstated to the same or a geographically proximate worksite.
  • The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.
  • The employee must have the same or an equivalent opportunity for bonuses, profit-sharing and other similar discretionary and non-discretionary payments.

The FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule or position that better suits the employee's personal needs on return from leave, or to offer a promotion. However, an employee cannot be induced by the employer to accept a different position against the employee's wishes. 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, intangible or unmeasurable aspects of the job.

Joint employers have shared responsibilities for employee reinstatement.

Continue to Reinstatement Limitations or Return to Employer Rights and Responsibilities Menu.

For more information on this aspect of the FMLA, see the FMLA regulations: ยง 825.215