5th Cir. Pattern Jury Instr. (Civil) 11.20

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being restored by the employer either to the position

the employee held when leave began or to a position

with equivalent benefits, pay and other terms and

conditions of employment].

3

An employee is eligible to take leave if, when [his/

her] leave began [he/she]: (1) had been employed by the

employer for at least 12 months; and (2) worked at least

1,250 hours during the previous 12-month period.

4

If eligible,

5

an employee is entitled to take up to 12

weeks of leave in any 12-month period [specify one or

more of the following, as applicable]:

1. because of the birth of the employee’s child and

to care for that child;

2. because of the placement of a child with the

employee for adoption or foster care;

3. to care for the employee’s spouse, son, daughter, or parent, if that person had a “serious

health condition”;

4. because of a “serious health condition” that

made the employee unable to perform the functions of [his/her] position; or

5. because of any qualifying exigency arising out

of the fact that the employee’s spouse or a son,

daughter, or parent is on covered active duty

(or has been notified of an impending call or or-

329 U.S.C. § 2612(a)(1) (entitlement to leave); 29 U.S.C. § 2614(a)(1)

(restoration to same or equivalent position); 29 U.S.C. § 2614(c)(1) (maintenance of “group health plan” benefits).

429 U.S.C. § 2611(2)(A) (definition of “eligible employee”). Whether

the plaintiff was an “eligible employee” under the FMLA will seldom be in

issue. This paragraph should be omitted if the employee’s eligibility is not

disputed.

5The phrase “if eligible” can be omitted if there is no dispute as to

eligibility .

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261

der to covered active duty) in the Armed

Forces.

6

While an employee is on FMLA leave, the employer

is required to maintain coverage for [him/her] under

any group health plan during the leave, under the same

conditions coverage would have been provided had the

employee not gone on leave.

7

On [his/her] return from FMLA leave, an employee

is entitled to be restored to the position [he/she] held

when the leave began, or to an equivalent position. An

“equivalent position” is one that is virtually identical to

the position the employee held at the time [his/her]

leave began, with equivalent employment benefits, pay,

and other terms and conditions of employment.

8

An employee is entitled to job restoration even if [he/she] was

replaced while on leave or [his/her] position was

restructured to accommodate the leave.

9

An employee’s exercise of FMLA leave rights does

not entitle [him/her] to greater rights to continued

employment or employment benefits than any of [his/

her] fellow employees who did not exercise FMLA leave

rights. The employer is not required to [maintain group

health plan benefits] [restore the employee to the same

or an equivalent position] if the employer proves that

the employee’s [employment/benefits] would have ended

629 U.S.C. § 2612(a)(1)(A)-(E). Again, the example may be limited to

those applicable in the particular case.

729 U.S.C. § 2614(c)(1). If the employee does not return from FMLA

leave and the employer has maintained group health benefits during the

leave, the employer may recover the premium that it paid to maintain the

employee’s group health plan benefits, so long as the serious health condition resulting in leave was not the reason for the failure to return, or

other circumstances beyond the employee’s control were responsible for

the failure to return. 29 U.S.C. § 2614(c)(2).

829 U.S.C. § 2614(a)(1). The regulations further define the term

“equivalent position.” 29 C.F .R. § 825.215(a)-(f).

929 C.F .R. § 825.214.