FMLA provides a qualifying employee up twelve weeks of job protected leave. That means the employee is entitled to return to the same position held before the leave, or to an “equivalent position” with equivalent pay, benefits, and other terms and conditions.   FMLA does not require an employer to restore employment if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition.   But, as the recent case of Dollar v. Smithway Motor Express,Inc. (8th Cir. 3/27/13) demonstrates, and employers should tread with caution when deciding whether to terminate an employee on FMLA leave in these circumstances.

Christine Dollar was on FMLA leave from her job as a driver manager because of depression and anxiety.   She went on leave June 10, and was excused from work until July 9.   In the middle of the leave, approximately June 13 or 14, Smithway told Dollar she could not return to the driver manager position because of her poor attendance before she went on FMLA leave (much of which was apparently related to the depression). If she returned to Smithway, she was told her new position would be as a driver recruiter.    But, on June 21, Smithway told Dollar it needed to fill the driver recruiter position and could not guarantee that position would be available unless she returned to work immediately.   Because her psychiatrist recommended she be off work until July 9, Dollar did not return immediately.   Smithway terminated Dollar on July 6.  

At trial, Smithway’s defense to the FMLA interference claim was that Dollar’s depression made her unqualified to serve as a driver manager (Notably, Dollar agreed she was not qualified to return to the driver manager job). But, she claimed she should have been returned to the driver recruiter position upon returning from leave. Smithway contended it was not required to hold open the driver recruiter position until Dollar returned to work because FMLA imposes no duty to accommodate an employee by holding open an equivalent position. 

The Court skirted the issue whether Smithway was required to hold open the driver recruiter position, and instead found Dollar had already been transferred to the recruiter position at the time of her termination. Therefore, she had the right to “return” to that job (even though it was not a job she had actually performed) upon returning from leave.  

The Dollar case shows once again that bad facts can allow an employee to prevail even when the law is technically on the employer’s side.    Any time an employer is considering termination of an employee while she is on FMLA leave, the case should be thoroughly vetted with counsel in advance.