Equivalent Job Restoration and Bonuses for Employees taking FMLA

When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an “equivalent job.” The employee is not guaranteed the actual job he or she held prior to the leave. An “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).

Equivalent pay includes the same or equivalent pay premiums, and the same opportunity for overtime premium pay as the job held prior to FMLA leave. An employee is entitled to any unconditional pay increases that occurred while he or she was on FMLA leave, such as cost of living increases. In addition, an employer must give pay increases conditioned upon seniority or length of service if employees taking the same type of leave (i.e., paid or unpaid leave) for non-FMLA reasons receive the increases.

Equivalent pay also includes any unconditional bonuses or payments. If a bonus is conditioned on achieving a specified goal, such as hours worked or products sold, and the employee does not meet the goal due to FMLA leave, payment of the bonus is not required unless the employer pays it to employees taking the same type of leave for a non-FMLA reason. If the employer pays the bonus to such employees taking leave for a non-FMLA reason, it must also pay the bonus to an employee taking FMLA leave. So, when an employee is substituting PTO or sick leave during FMLA, the employee would likely be eligible for bonuses, but when the employee is in an unpaid status, he/she is usually not eligible.  Review company policies and practices to determine your specific situation.

Download the Employer’s Guide to FMLA for more answers from the DOL to common situations.

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