Q: From late 2020 into early 2021, I took a leave of absence from work to address my mental health challenges during the coronavirus pandemic. I had been in a very visible leadership role with lots of early-morning meetings (starting at 4 or 5 a.m.), and it wreaked havoc on my mental health. It definitely wasn’t my strongest year.
I received short-term disability pay throughout and was fully covered by federal and state medical leave laws.
As I was phasing back into work over several weeks, it became clear that my job had been taken over by my boss and that the team was working well together. (There had been not good team dynamics among the people reporting to me when I left.)
A few weeks after, I got my review. It wasn’t good, but I pushed back and my VP went to bat for me, so it was improved to a “strong” rating.
Ultimately my old role was eliminated and a new role was created for me, same salary but with a lower bonus structure. It’s something I could easily do and is probably the right place for me now. My time off helped me realize my meaning is more than title and salary; however, I’m not certain this was legal. Doesn’t FMLA require that you be returned to an equivalent role if your role is erased?
A: Yes, the Family and Medical Leave Act requires that you be returned to the same or an equivalent role when you return from leave. And Labor Department rules define an equivalent new role as “virtually identical” to the old one, not only in terms of pay and benefits, but also including the same skill set, status, privileges, and responsibilities, says Amy Epstein Gluck, employment law partner at FisherBroyles.
Of course, some of those components, like “status,” can be hard to quantify. It might be worth consulting an employment attorney to analyze your old and new roles for an apples-to-apples view of whether you’ve really been given an “equivalent position,” or a stealth demotion.
You breezed by some details in your account that suggest the latter: There were “not good team dynamics” among the people you supervised, but they’re now performing better under different leadership; you had to fight for a better rating on what you acknowledge “wasn’t [your] strongest year.” If your originally weak performance review was based on problems that predated your leave, the company had better have “contemporaneous documentation” of those issues, Epstein Gluck warns, to avoid suggesting that you’re being punished or retaliated against for taking leave.
And given that your old role “wreaked havoc on [your] mental health” and apparently contributed to your need for leave in the first place, it’s worth considering how to structure your new role so that it doesn’t undo your recovery. It’s possible you weren’t quite right for the old role — and certain that it wasn’t good for you — but that doesn’t mean you must meekly accept less than you’re entitled to. Even if your employer thought less visibility and a less challenging position would mean less strain on your mental health, that’s not the employer’s unilateral call to make.
So how to ensure you’re being restored to the position you’re legally entitled to, but without the parts that made it untenable? “This whole thing is going to hinge on communication,” says Epstein Gluck. If, after talking with a lawyer, you’re concerned that you’ve been stripped of key features that make this job truly equivalent to your old position, it’s time to start a dialogue with management. And I hope you’ll either begin or continue working with a mental health professional to figure out what brings you genuine, self-affirming satisfaction at work beyond shiny markers of success.
In a way, your situation is a microcosm of what the pandemic has forced us all to realize about work, education and socializing: that our old way of doing things was not necessarily the most productive or healthy, and that alternatives are possible and desirable. We all need time and space to sort out what kind of world we want to return to and how it will differ from the one we knew pre-disruption.