SECTION 12: EMPLOYEE RIGHTS UPON RETURN TO WORK

Employee Reinstatement Guidelines

The FMLA and CFRA Guidelines give rights to employees which go beyond the rights guaranteed under County Civil Service Rules. The County may deny restoration of employment to an employee on FMLA and/or CFRA leave, if reinstatement would have been denied regardless of whether or not FMLA and/or CFRA leave was taken. Some examples include:

• Layoff - Civil Service Rules and MOUs regarding re-employment after layoff apply to employees on FMLA and/or CFRA to the same extent is it would to employees not on FMLA and/or CFRA leave.

• Seasonal Workers - If a seasonal workers list is maintained for reemployment, the worker out on FMLA and/or CFRA leave must be placed on the list in the same manner as if he or she was never on FMLA and/or CFRA leave.

There may be circumstances in which a returning employee's health care provider certifies that the employee is unable to perform the essential functions of his/her position because of a mental or physical condition, including the continuation of a serious health condition. In this situation, management must take into account the County's obligation and the employee's rights under ADA.

Other Requirements Regarding Return to Work

• If the employee no longer qualifies for the position because of an expired license or missed training while on FMLA and or CFRA leave, the employee must be given a reasonable opportunity to renew his or her license or receive training upon return to work.

• The employee is subject to any general salary increases or decreases in pay instituted while the employee was on leave.

• The employee is entitled to any step increases due on a step anniversary date that occurs while the employee was on FMLA and/or CFRA leave and in accordance with County Code Section 6.08 Rules for Application of Step Rates provided the step increase would have been granted had the employee been at work. The employee on FMLA and/or CFRA leave retains his or her step anniversary date.

   

Workers from Temporary Employment Agencies

FMLA and/or CFRA considers temporary employment agencies as the primary employer responsible for designating FMLA and/or CFRA leave and job restoration. However, the County, being the secondary employer, must accept the worker returning from FMLA and/or CFRA leave in place of the replacement worker, if the County continues to use the agency and the agency chooses to place the returning worker with the County. In addition, the County is prohibited from preventing a worker from a temporary employment agency from exercising his or her rights under FMLA or CFRA.

Equivalent or Comparable Position Under FMLA and CFRA

An equivalent or comparable position is one that is virtually identical to the employee's former position in terms of pay, benefits, working conditions, privileges, bonuses, and status. The equivalent position must provide all of the following:

• The same salary and benefit entitlement the employee held prior to the FMLA and/or CFRA leave. For example, an employee who received the MegaFlex cafeteria plan cannot be placed in a position that provides Choices or Options plans even if the salary is identical.

• The same working conditions, including privileges, bonuses, and status (i.e. permanent, temporary, recurrent, etc.). For example, if the employee qualified for an auto allowance prior to FMLA and/or CFRA leave, the equivalent position must provide the same privilege.

• The same or substantially similar responsibilities and duties requiring the same or substantially similar skills, effort, responsibility and authority.

• The same or geographically proximate worksite from where the employee had previously been assigned (i.e., not a significant increase in commute time). However, if the employee's previous worksite is closed, the employee on FMLA and/or CFRA leave is to be treated in the same manner as all other employees who were not on FMLA and/or CFRA leave even if this means a transfer which results in a significant increase in commuting time.

• The same shift or work schedule to the extent that such a schedule would have been available to the employee had the employee not taken FMLA and/or CFRA leave. If the employee, for example, worked a 9/80 work schedule prior to FMLA and/or CFRA, the equivalent position must provide the same schedule unless the 9/80 work schedule was eliminated for all employees.

• The same or equivalent opportunity to earn overtime, shift differential, bilingual bonus and other non-base rate compensation.

Return to Work Limitations

In general, the employee has the same (but not greater) rights to compensation and conditions of employment as if he or she had continuously been at work instead of on FMLA and/or CFRA leave. This means:

• An employee on FMLA and/or CFRA leave is not excluded from layoff as long as the layoff would have occurred had he or she been at work.

• An employee is not entitled to return to the same shift or work the same overtime hours, if such privileges have been eliminated for all employees within the same position, worksite, branch, department, etc.

• Employees hired only for a specific term or projects have no right under the FMLA and/or CFRA to restoration if the term has expired or the project has been completed. However, if the department maintains a list of seasonal workers for re-employment each year, the worker must be placed on the list in the same manner as if he or she was never on FMLA and/or CFRA leave.

• An employee who is concurrently placed on Worker's Compensation and FMLA and/or CFRA leave will not have FMLA and/or CFRA protection if the employee is unable to return to work after the 12-week entitlement has expired. The employee may have rights and protections under Workers' Compensation and ADA.