Your Rights While on FMLA Leave

Understand your rights during and after FMLA leave.

If you are eligible for leave under the Family Medical Leave Act (“FMLA”), you are entitled to certain benefits, including the right to unpaid time off from work and continuation of health benefits. One of the most important rights under FMLA is also the right to return to the same position you held before you went on leave or one that is equivalent to it (called “reinstatement”).

This article discusses your rights while on FMLA leave and when you’re ready to return to work. For more information about the FMLA, including eligibility requirements, see Taking Family and Medical Leave.

The FMLA

Under the FMLA, employers of a certain size (those with 50 or more employees) are required to provide up to 12 weeks of unpaid leave to eligible employees for the following purposes:

  • to care for the employee’s own serious medical condition or that of a close family member
  • to bond with a newborn or newly adopted child, or
  • to attend to certain issues that arise when a spouse, child, or parent is on active military duty.

Both the employer and the employee have certain obligations prior to the employee taking leave, including certain notice and scheduling requirements. For more information, see Family and Medical Leave: An Overview. Once an employee is on FMLA leave, the employer has additional obligations, which are discussed below.

Your Rights While on Leave

In addition to time off to care for yourself or family members, the FMLA gives you some additional rights during and after your leave.

Right Not to Work

Once you start your approved FMLA leave, your employer cannot ask or expect you to perform any work. This includes reading or responding to emails, providing back-up support for your temporary replacement, or any other type of work.

Use of Paid Leave

Time off under the FMLA is unpaid. However, if your employer has a policy providing for paid leave, such as vacation or PTO, you are entitled to use accrued paid leave during your FMLA leave under certain circumstances. If the reason for your leave falls within the types of leave covered by your employer’s leave policy, you can use your accrued paid leave during your FMLA leave. For example, if your employer’s policy allows employees to take paid sick days to care for a sick child, you can use your accrued paid days. State laws may also give you the right to use accrued paid leave for FMLA purposes.

If the reason for your leave is covered by your employer’s paid leave policy, you may not have a choice in using your paid leave. Your employer can require you to use your accrued paid leave during your FMLA leave, even if you don’t ask to do so.

Continued Health Insurance

If your employer has a group health plan under which you are covered, your employer must continue to provide you with coverage during your FMLA leave. If your employer pays a portion of your health insurance premiums while you are working, it must continue to do so during your FMLA leave. However, if you voluntarily decide not to return to work after your FMLA leave ends, your employer can require you to reimburse it for the premiums it paid during your leave. If you’re unable to return to work due to a serious health condition or other circumstances outside of your control, though, your employer cannot force you to reimburse it for the premiums.

Reinstatement

Once your FMLA leave is over, your employer must reinstate you to the same position you held prior to taking FMLA leave or to an equivalent position. An equivalent position is one that is virtually identical to the one you held prior to FMLA leave in the following areas: pay, benefits, job duties, shift and schedule, and worksite.

Your employer must reinstate you as soon as you return from leave, unless you change your expected return date. In that case, your employer must reinstate you within two business days after you give notice of your return date.

If you took FMLA leave for your own medical condition, your employer can require you to submit a fitness-for-duty certification from a doctor stating that you are able to return to work. However, your employer may only do this if it has a policy of requiring such certification for employees returning from leave and has consistently followed this policy.

In some cases, your employer may refuse to reinstate you, claiming that your position was eliminated or that it had some other business reason for permanently replacing you. There are only a few limited situations in which your employer may legally not reinstate you. For more information, see Nolo’s article, Reinstating an Employee After FMLA Leave.

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