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February 09, 2011
Issues to Consider Before Reinstating an Employee After FMLA Leave

What should you communicate to your supervisors regarding the reinstatement of an employee who has taken leave under the Family and Medical Leave Act (FMLA)? You should convey the following information.

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FMLA requires covered employers to provide each qualified returning employee with the same position or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

A covered employer may deny or delay reinstatement under these circumstances if:

  • The employer can show that the employee would not have remained employed if leave had not been taken. An employee's rights to continued leave, health benefits, and job restoration end if and when the employment relationship would otherwise have ended—for example, because of a layoff—unless the employee remains on paid FMLA leave;
  • The employee unequivocally advises the employer of his or her intent not to return to work;
  • The employee fraudulently obtained leave or violated company policy; or
  • The employee is no longer qualified to perform the essential functions of his or her previous position. Note: This situation could bring the requirements of another federal law—the Americans with Disabilities Act—into play. Before taking any action in such situations, supervisors should consult the HR department.

In addition, an employer may lawfully deny reinstatement to certain highly compensated employees or "key employees" if the following conditions are met:

  • Denying restoration is necessary to prevent substantial and grievous economic injury to our operations;
  • The employer notifies the employee of its intent to deny restoration at the time it determines that substantial and grievous economic injury would occur; and
  • In any situation in which leave has commenced, the employee elects not to return to employment after receiving the notice referenced above.

Note: This exception is rarely used and should be used as a last resort and only after consultation with HR.

Finally, an employer may delay reinstatement until the employee provides a fitness-for-duty certificate, which may be obtained only from a medical professional. The employer may require the fitness-for-duty certification to address the employee's ability to perform the essential functions of the job. Also, where there are reasonable safety concerns, the employer may require a fitness-for-duty certification before an employee returns to work from intermittent leave.

The above information comes from BLR's presentation "FMLA: What Supervisors Need to Know." For more information on all the training courses BLR has to offer, go to our Employee and Manager Training page.

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