CONCURRENT RESOLUTIONS—APR. 16, 1996 110 STAT. 4329 the employee does not have sufficient hours as a result of taking unpaid FMLA leave, the benefit is lost. (In this regard, § 825.209 addresses health benefits.) (e) Equivalent Terms and Conditions of Employment: An equivalent position must have substantially similar duties, conditions, responsibilities, privileges and status as the employee's original position. (1) The employee must be reinstated to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. If the employee's original worksite has been closed, the employee is entitled to the same rights as if the employee had not been on leave when the worksite closed. For example, if an employing office transfers all employees from a closed worksite to a new worksite in a different city, the employee on leave is also entitled to transfer under the same conditions as if he or she had continued to be employed. (2) The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule. (3) The employee must have the same or an equivalent opportunity for bonuses and other similar discretionary and nondiscretionary pa3nnents. (4) FMLA does not prohibit an employing office from accommodating an employee's request to be restored to a dif- ferent shift, schedule, or position which better suits the employ- ee's personal needs on return from leave, or to offer a promotion to a better position. However, an employee cannot be induced by the employing office to accept a different position against the employee's wishes. (f) The requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis or intangible, immeasurable aspects of the job. However, restoration to a job slated for layoff, when the employee's original position is not, would not meet the requirements of an equivalent position. §825.216 Are there any limitations on an employing office's obligation to reinstate an employee? (a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employing office must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to emplo5ntnent. For example: (1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employing office's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee ceases at the time the employee is laid off, provided the employing office has no continuing obligations under a collective bargaining agreement or otherwise. An employing office would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. (2) If a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to
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