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.
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:
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.
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.
There are several exceptions to the reinstatement right. An employee may be denied reinstatement if:
Because denying an employee reinstatement could well lead to a lawsuit, you should consider talking to a lawyer before making this decision.