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Florida Labor & Employment Lawyer > Blog > Employment Law > Job Protection Under FMLA: Why You Must Ensure Your Employees Return to the Same or “Equivalent” Position After Taking Leave

Job Protection Under FMLA: Why You Must Ensure Your Employees Return to the Same or “Equivalent” Position After Taking Leave


If you own or operate a Florida business with at least 50 employees, you are required to comply with the federal Family and Medical Leave Act (FMLA). Additionally, during the COVID-19 pandemic, private employers with fewer than 500 total employees must also comply with the provisions of the Emergency Family and Medical Leave Act (EFMLA).

Both acts require employers to provide job-protected leave to workers who meet certain requirements. By “job-protected,” federal law means that the employee who takes leave must be allowed to return to the same job or an “equivalent position.” As an employer, you cannot demote or reassign the employee to a lesser role simply because they opted to take job-protected leave. 

Case Example: Ex-Nursing Director’s FMLA Case Against Florida Medical Practice Allowed to Proceed

Employers can easily fall into a trap of thinking they have complied with the FMLA, only to find themselves the subject of a lawsuit by an aggrieved former employee. A recent decision from the U.S. 11th Circuit Court of Appeals, Simmons v. Henghold, helps to illustrate this point. In this case, the appeals court reversed a Florida judge’s earlier ruling dismissing an FMLA lawsuit brought against a Florida dermatology practice.

The plaintiff in this case previously worked for the defendant’s practice. The defendant initially hired the plaintiff as a registered nurse. After several years, the defendant promoted the plaintiff to director of nursing. In this capacity, she continued to perform the duties of a surgical nurse but also had a number of administrative responsibilities.

The plaintiff was also involved in an extramarital affair with the owner of the practice. This affair ended after the plaintiff learned that the owner was also involved with another employee. The plaintiff and the practice’s CEO subsequently agreed that the plaintiff would “take a leave of absence” from her job as nursing director. The defendant subsequently hired a new employee to serve as “chief nursing officer.”

The plaintiff remained employed by the defendant during this transition. The defendant apparently expected the plaintiff would resign and agree to a severance package. Instead, her lawyer informed the defendant that she had “no plans” to resign and instead said she intended to remain on leave “to address the mental anguish and anxiety resulting from the situation.” The plaintiff’s attorney expressly invoked the FMLA at this point.

Eventually, the plaintiff was ready to return to work. As the 11th Circuit explained, there were “multiple, inconsistent accounts” of what happened next. The plaintiff said she was told that all “nursing responsibilities” had been reassigned to the newly hired nursing director. The defendant insisted the plaintiff was still the nursing director, but she now had to report to the new hire, who had the title of “chief nursing officer.”

The plaintiff ended up resigning and filing her lawsuit against the defendant, alleging violations of the FMLA and Florida state law. Although a trial court dismissed the FMLA claims, the 11th Circuit said that was premature. The appeals court said the evidence, while still in dispute, could lead a jury to conclude the plaintiff “returned to a position after her FMLA leave that was not equivalent to her former job.”

Emergency Family and Medical Leave Act (EFMLA): What Employers Need to Know

Under the Families First Coronavirus Response Act (FFCRA), temporary regulations are in place to provide federally guaranteed paid leave benefits for many employees. The new regulations have raised considerable confusion among employers and employees—particularly as it pertains to the EFMLA. Here is what covered employees in Florida need to know:

  • An employee taking leave to care for a child due to a coronavirus related emergency (a school shutdown, a childcare provider closure, etc) may qualify for both EPSL (paid sick leave) and EFMLA (unpaid family leave).

As guaranteed paid leave only lasts for two weeks and unpaid family leave lasts for up to twelve weeks, the employee has the right to determine if they want to take their federally guaranteed paid leave right away or, alternatively, save it for a later date. However, if an employee has earned paid time off (PTO) an employer may require that worker to use their PTO instead of taking unpaid EFMLA leave.

Regardless, employees who are eligible to take job protected leave under the EFMLA are still entitled to return to the same or an equivalent position—similar to traditional family or medical leave. If you are a Florida employer with questions about your rights and duties under the EFMLA, consult with an experienced employment lawyer right away.

Do You Need Help Meeting Your Obligations Under the FMLA or the EFMLA?

An employer’s obligations under the FMLA and the EFMLA go beyond simply granting leave. The employer must also ensure the employee is able to return to the same duties and responsibilities as when they began their leave. If you need help with FMLA or the EFMLA, contact a qualified Florida employment law attorney today.


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