Reinstating an Employee After FMLA Leave

The FMLA gives employees the right to reinstatement following their time off.

By , J.D. UC Berkeley School of Law

When an employee returns from FMLA leave, your company is legally obligated to reinstate the employee, unless an exception applies. The employee is also entitled to reinstatement of all benefits. This article explains how to reinstate an employee after FMLA leave, including what position the employee must be returned to, deadlines for reinstatement, and exceptions to the reinstatement right.

Reinstatement to the Employee's Former or an Equivalent Position

An employee must be reinstated to his or her former position or to an equivalent position. The employee's former position is simply the position the employee held before going out on leave. But what's an equivalent position?

A position is equivalent only if it is virtually identical, in every important respect, to the employee's former position. Courts will look at the following factors in determining whether a position is equivalent:

  • Pay. An employee is entitled to the same salary or hourly compensation, as well as any opportunities to earn extra money (through overtime or performance-based bonuses, for example), that were previously available. The employee is also entitled to any automatic raises that took place during the employee's leave.
  • Benefits. The equivalent position must offer the same benefits, at the same levels, as the employee's previous job.
  • Job duties. The job duties must be substantially similar to those of the former job. Minor alterations are allowed, but the new position must have the same prestige in the company as the employee's former position. Employers get in trouble when the "equivalent" position starts to look more like a demotion.
  • Shift and schedule. Ordinarily, an employee is entitled to be returned to the same shift and to the same or an equivalent schedule.
  • Worksite. A job at a different worksite is not an equivalent position if it significantly increases the employee's commute in time, distance, or both.

Deadlines for Reinstatement

An employee is entitled to immediate reinstatement once he or she reports back to duty. If your company knows well in advance exactly when an employee will return, this means the employee must be reinstated the day he or she reports back to work.

If an employee's return to work is delayed or accelerated (often because a serious health condition has taken an unexpected turn), you may require the employee to give you notice, at least two business days ahead of time, of the date he or she plans to return to work. If the employee just shows up unexpectedly for work, and your company can't reinstate the employee immediately, consider that your notice – and reinstate the employee within two working days.

Fitness-for-Duty Certifications

If an employee takes leave for his or her own serious health condition, you may require the employee to provide a fitness-for-duty certification: a signed statement from a health care provider indicating that the employee is able to return to work. However, your company may require the employee to provide this certification only if it has a consistently applied practice or policy of requiring employees to provide such a statement.

When Reinstatement Might Not Be Required

There are several exceptions to the reinstatement right. An employee may be denied reinstatement if:

  • The employee would have lost the job even if he or she hadn't taken FMLA leave (for example, because the employee's department was eliminated).
  • The employee can't perform an essential function of the job. In this situation, the employee may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA).
  • The employee took FMLA leave fraudulently (for example, based on a fake or altered medical certification).
  • The employee is a "key employee": one of the highest paid 10% of the company's employees within 75 miles of the employee's worksite, whose reinstatement would cause the company substantial and grievous economic injury.

Because denying an employee reinstatement could well lead to a lawsuit, you should consider talking to a lawyer before making this decision.

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