In Waag v. Sotera Defense Sols. Inc., 2017 BL 163037, 4th Cir., No. 15-2521, 5/16/17), Gary Waag brought an action alleging that his former employer, Sotera Defense Solutions, Inc., violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., by not restoring Waag to his position when he returned from two-months-plus of medical leave; by placing him in a new job that was not equivalent to the one he held before he went on leave; and by terminating Waag from the new job because he took medical leave.  The district court granted summary judgment to Sotera, and Waag appealed.  The Court of Appeals affirmed and explained with the following analysis.

Under the FMLA, “an eligible employee” is “entitled to a total of 12 workweeks of leave during any 12-month period” for family- and health-related reasons. 29 U.S.C. § 2612(a)(1) . An employee who takes leave under § 2612 shall be entitled, on return from such leave—

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

29 U.S.C. § 2614(a)(1).

The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Claims for violations of the prescriptive rights set forth in § 2612 are “known as ‘interference’ or ‘entitlement’ claims.”

Additionally, the FMLA contains proscriptive provisions that protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA. The retaliation provision states that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.” 29 U.S.C. § 2615(a)(2) .

Waag first argues that Sotera interfered with his FMLA rights by failing to restore Waag after he returned from leave to his former position with the company even though the position was still available.  As is clear from its plain language, however, the FMLA does not require an employer to restore an employee returning from leave to his previous position no matter what.

The FMLA provides that an eligible employee “shall be entitled, on return from such leave—(A) to be restored . . . to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1).

Congress provided restoration rights in the disjunctive, meaning that restoration of a covered employee to either position—the employee’s original job or a different job that is “equivalent” within the meaning of the statute—will suffice to satisfy § 2614(a)(1) .

 The text has a plain and unambiguous meaning—that an employee who takes FMLA leave has the right to be restored either to his original position or to an equivalent position. Furthermore, the restoration provision does not indicate a preference for restoring covered employees to their pre-leave positions over “equivalent” positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave.

Waag would have us rewrite the FMLA by adopting his preferred reading of the text. Although Congress is free to revise the statute so that an employer can restore an employee to an equivalent position only if the employee’s original job no longer exists, this court is not empowered to do so.

Pursuant to the plain terms of § 2614(a)(1) , Sotera had the option of placing Waag in a job equivalent to his original, pre-leave job. Waag did not have an absolute right to return to his original position. Thus, we conclude the district court correctly rejected Waag’s legal contention that Sotera interfered with his FMLA rights by not restoring him to his pre-leave position.

TAKEAWAY: After returning from FMLA leave, employees do not have an absolute right to return to their original position. Employers are able to fully comply with the law by restoring an employee to an equivalent position even if the original position is still available. The law does not indicate a preference for restoring covered employees to their pre-leave positions over “equivalent” positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave.