Atlanta Employment Attorneys Blog
In 2023, the U.S. Department of Labor’s Wage and Hour Division (WHD) published a fact sheet regarding certain protections that the Family and Medical Leave Act (FMLA) affords workers who take covered leave. One of the keys is that the FMLA “provides job-protected leave from work.” That protection means not simply that the employee has a job waiting when they resume work but that they return their job (or an equivalent.) Whether you are an employee taking FMLA leave or an employer addressing FMLA issues, it pays to be mindful of these protections and, if you have questions or concerns, to speak to an experienced Atlanta FMLA leave lawyer.
Early last month, a customer service representative sued her employer for violating the FMLA. Specifically, the representative’s FMLA interference case alleged that her employer did not comply with the law’s “job-protected” aspects.
According to the lawsuit, the representative went through the proper FMLA process and obtained approval for a leave spanning several weeks in the fall of 2024, during which time she received treatment for RSV.
The representative allegedly was ready to return to work on Nov. 19 and had the necessary medical certification to support her return. However, according to the complaint, the employer did not restore her to her original role but instead treated her as a new employee.
If this employee can substantiate her allegations, her employer could face potential liability exposure. The “job-protected” portion of the FMLA includes several components.
One significant aspect of the protection is the requirement that an employee returning from FMLA leave receive a job that is the same or equivalent to what she had before she took leave. Simply providing workers with the same (or nearly identical) pay does not automatically satisfy this requirement. In its 2023 fact sheet, the WHD used the example of a departmental manager who, after returning from FMLA leave, is temporarily assigned to a clerical position with no supervisory authority.
Even though the assignment was purportedly temporary and the employer promised the employee would receive the same pay as when she left, the FMLA still does not allow this. Because the two jobs involved substantially different levels of status, responsibility, and authority, they are not equivalent, and the employee has a statutory right to be placed in a position equivalent to what she held when she left.
Similarly, treating a customer service representative with some degree of seniority as a new employee upon her return from FMLA leave would, even if it did not involve a pay cut, inevitably would, at a minimum, involve a reduction in status, making the two roles non-equivalent.
Health Insurance Benefits
Another crucial piece to keep in mind is health insurance benefits. If an employee who takes FMLA leave has coverage through her employer’s group plan, she has the right to continue receiving coverage, and it must be the same coverage. That means that if her coverage included other family members, those family members must remain covered. Whatever medical needs — be it “medical care, surgical care, hospital care, dental care, eye care, mental health counseling, [or] substance abuse treatment — that were covered before must remain covered while the employee is on leave.
If the employer changes plans or benefits company-wide while the employee is on FMLA leave, the employee on leave must receive notice and an opportunity to change her coverage. An employee who drops her coverage while on leave is entitled to resume coverage at the same levels she had when she began her leave. That includes family or dependent coverage.
If you have confronted an issue related to FMLA compliance, whether you are an employer or an employee, be sure to get the accurate answers you need. The knowledgeable Atlanta FMLA interference attorneys at the law firm of Parks, Chesin & Walbert regularly advise clients about issues related to FMLA eligibility, coverage, compliance, and more. Contact us through this website or at 404-873-8048 to schedule a consultation today.