Reinstatement Under the FMLA: Returning to Work After Your Leave

Learn your rights when it comes to returning to work after FMLA leave.

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.

What Is FMLA 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:

  • to care for the employee’s own serious medical condition
  • to care for a parent, spouse, or child with a serious medical condition
  • to bond with a newborn or recently adopted child or foster child
  • to attend to certain issues arising out of a family member’s active military service, or
  • to care for a service member with a serious illness or injury sustained in the line of duty (the FMLA provides up to 26 weeks for this type of leave under certain circumstances).

What Are Your Rights to Reinstatement?

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:

  • Does it pay at least as much as your prior position?
  • Are the benefits the same?
  • Does the new position have the same or similar work hours, shifts, or schedule?
  • Are the job duties of the two positions the same or very similar?
  • Is the new position located at the same work site or at a nearby work site?

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).

Can Your Employer Demand a Fitness-for-Duty Certification?

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.

When Can Your Employer Refuse to Reinstate You?

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:

  • you would have lost your job regardless of taking leave (such as where your department is eliminated)
  • you cannot perform the essential functions of your job any longer (However, if this is the case, you may be able to request reasonable accommodation under the American’s with Disabilities Act (“ADA”). For more information, see our article on reasonable accommodation under the ADA.)
  • you took FMLA leave based on a fraudulent or fake certification, or
  • you were among the highest paid 10% of your company’s employees, called a “key employee,” and your reinstatement would cause grievous economic harm to the company.

Getting Help

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.

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