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Patrick, Esq.
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If I chose to not exercise fmla 29 CFR 825.215(a) rights while

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If I chose to not exercise fmla 29 CFR 825.215(a) rights while on intermittent leave, does this action in any way jeopardize my ability to exercise these same rights when I return from fmla leave? In other words, if I accept a non-equivalent temporary position now, can that decision negatively impact my ability to receive job reinstatement to an equivalent position when I return from fmla leave?
Hello and thank you for entrusting me to answer your question.

If you unequivocally indicate that you will accept a non-equivalent position, that could at least conceivably affect your right to assert an objection when you actually return.

Specifically, an employer in this circumstance could claim the equitable defense of "laches." Laches refers to an "unreasonable delay" in pursuing a right or claim in such a way that prejudices the opposing party. The person invoking laches is asserting that the opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the party's original claim.

Similar to laches, an employer in this circumstance might assert the theory of equitable estoppel. Equitable estoppel is a legal theory by which a party is prevented from asserting his or her rights because he or she misrepresented facts which another party then relied upon to their detriment. Generally speaking, the elements of equitable estoppel are: (1) representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel that is caused by the representation and reliance thereon.

In other words, if you were to agree to the change in position now, your employer could, in theory, argue that you are prevented from changing your mind later because your employer relied on your previous assertion and that you have passed up the opportunity to assert your rights. Of course, these problems could generally be avoided by conditionally accepting the alternative position or accepting it "under protest," i.e. stating that you will accept the position notwithstanding that you believe the status to be inferior to your previous position and without waiver of your rights set forth in section 825.215(a).

Again I hope that this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

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