If you were granted leave under the Family and Medical Leave Act (FMLA) and are ready to return to work, your employer must reinstate you to your former position, except in a few, limited situations. This article explains your right to return to work after FMLA leave and what your employer’s obligations are.
For more information on the FMLA, including eligibility requirements, see Nolo’s article, Taking Family and Medical Leave.
The FMLA is a federal law that requires employers with 50 or more employees to provide eligible employees with up to 12 weeks of unpaid leave for the following purposes:
When you are ready to return from FMLA leave, your employer must reinstate you to the same position you held prior to your leave or an “equivalent position.” An equivalent position is one that is nearly identical in terms of pay, benefits, and other working conditions. The position must also be substantially similar in terms of duties, responsibilities, privileges, and the level of skill required.
To determine whether a new position is equivalent to your prior position, consider the following:
The FMLA also sets deadlines by which your employer must reinstate you. When you’ve notified your employer in advance of your return date, your employer must reinstate you on that date. However, if your return to work date has changed unexpectedly, your employer has two business days to reinstate you. For example, sometimes an employee’s return to work is either delayed (because of medical complications) or moved up in time (because the employee’s condition has resolved earlier than expected). When either of these events occurs, the employer may ask the employee to give at least two business days’ notice of the new return date. And, even if you fail to give notice and just show up when you’re ready to work, your employer must still return you to work within two business days (even if it is not ready to do so on the day you first report back).
Before reinstating you, your employer may require you to provide a written statement from your medical care provider, stating that you are medically able to return to work. Your employer can only demand this statement, called a “fitness-for-duty certification,” when the reason for your FMLA leave was your own serious medical condition. Your employer must also have a policy requiring such certification and must have followed it when other employees have taken and returned from medical leave.
There are a few situations in which your employer does not have to reinstate you. You are not entitled to reinstatement if any of the following are true:
If you think your employer has wrongfully refused to reinstate you at the end of your FMLA leave, you should consult with an employment attorney right away. See our article, Finding and Hiring an FMLA Lawyer, for more information.