In Iwanejko v. Cohen & Grigsby, P.C., No. 2:03-cv-1855, 2006 U.S. Dist. LEXIS 66023 (W.D.Pa. Sept. 15, 2006), Iwanejko, an associate attorney at Cohen & Grifsby, was transported to a psychiatric hospital after a severe a psychotic episode at work. He was offered FMLA leave while he recovered. Iwanejko eventually returned to work with restrictions set forth in a return to work agreement negotiated with input from his treating physician. He agreed to limit his work to 30 hours a week and to only be in the office on weekdays from 8:00 am through 6:00 pm. He received his same salary, benefits, office, secretary, title and practice area. Approximately a year later he was allowed to work 40 hours a week. Two years after the incident his employer discovered that Iwanejko had violated the terms of the return to work agreement by working after 6:00 p.m. on 87 occasions. He was eventually terminated for breach of the return to work agreement. Iwanejko sued alleging that his employer failed to return him to an equivalent position at the conclusion of his FMLA leave. The court found that Iwanejko was reinstated to his same position albeit with the limitation on the number of hours he was permitted to work each day and week. The court found that the work hour’s limitation was reasonable in light of the plaintiff’s medical condition. The court further found that the position was “substantially equivalent” and that the work hour’s limitation did not result in a loss of income.
Comment: The FMLA requires all federal employers to return an employee from FMLA leave to the same or an equivalent position. The court in Iwanejko is somewhat confused as it asserts both that the plaintiff was returned to his same position and a substantially equivalent position. The work limitations restrictions would appear to more appropriately bring the post-return position under the “equivalent position” prong as the pre-leave position did not have such restrictions. The case reminds us that although an “equivalent” position must be virtually identical to the former position in terms of pay, benefits, and working conditions, the standard does not require that the position be exactly the same. Courts have permitted employers to take into account the employee’s physical capabilities in determining the equivalent work and compensation involved. I also note that the court could have determined that the Iwanejko did not have an FMLA right to return to work because he was not able to perform all essential functions of the job, including the long work hours required of legal associates. As such, the work hour’s limitation did not implicate the FMLA at all. Return to work issues are addressed in Chapter 13 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).