Case Study: Negotiation Of Conna's Former Position

John,

I would like to offer my assistance to help remedy some challenges you may be having with reinstating Conna from FMLA. Harbor is legally obligated to reinstate Conna to her former position or to an equivalent position. The employee’s former position is the position the employee held before going out on leave. A position is equivalent only if it is virtually identical, in every respect, to the employee’s former position.

Conna’s job duties before she left on FMLA required her to perform transcription responsibilities. Because those duties were associated with her position prior to her FMLA leave, by law, those responsibilities have to be reinstated to her. Once those tasks are reinstated, then she should not need light duty as long
If I understand correctly, she was supposed to report back on Monday of this week and was not reinstated. A word of caution- if this is correct, then Harbor can potentially be held liable for not abiding by the law. The longer we wait to reinstate the employee to her former position and avoid a fair attempt to make reasonable accommodations for light duty [when it seems that it is already available], then the more dire this predicament becomes. Please keep in mind that if it comes to a lawsuit against the company, the burden of proof is always on the employer and not the
City of Newport (9th Cir. 2011). Sanders reminds employers that, if they deny an employee reinstatement at the conclusion of FMLA leave, the employer should be prepared to prove why the employee did not have a right to return to work under the FMLA. In this case, the employer did not permit an employee to return to work from FMLA leave because the employee had been placed by her physician under a permanent restriction for which the employer could not “guarantee” an accommodation. The employee subsequently sued her employer for interfering with her FMLA right to reinstatement. Without addressing the merits of the case, the U.S. Court of Appeals for the Ninth Circuit held that the employer carries the burden of proving that an employee taking FMLA leave does not have a right to reinstatement. The Eighth, Tenth, and Eleventh Circuits had previously reached the same conclusion. In contrast, the Seventh Circuit has placed the burden of proof on the employee. Because the issue appears unsettled in the courts, employers, as a precaution, should be prepared to explain why it has denied reinstatement to an employee at the conclusion of FMLA