Most discussions about the federal Family and Medical Leave Act (“FMLA”) examine issues relating to granting or denying FMLA leave. These issues commonly include the reasons FMLA leave may be taken, employee eligibility requirements, employee and employer notice obligations, medical certifications, and the interaction of FMLA leave with other forms of time off. This article, however, focuses on the end of FMLA leave—particularly, the circumstances when employees may be denied reinstatement.
The FMLA generally requires employees returning from leave to be placed in the position they held when their leave began or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. Nevertheless, there are circumstances when employees do not have to be reinstated by their employer when their FMLA leave ends. For example, reinstatement may be denied in the following situations:
- Failing to Provide a Fitness-for-Duty Certification: When an employee’s own serious health condition is the reason for continuous FMLA leave, the employer may require the employee to provide a fitness-for-duty certification from a health care provider as a condition of allowing the employee to return to work. If not provided, job restoration may be denied. This policy of requiring a fitness-for-duty certification must be uniformly applied to all similarly situated employees to be valid. Additionally, the FMLA Designation Notice must advise the employee if the employer requires a fitness-for-duty certification to return to work.
- Employee Unequivocally Announces an Intent Not to Return to Work: If an employee on FMLA leave unequivocally advises their employer they will not be returning to work, the employer’s obligations to maintain health benefits (subject to COBRA) and to reinstate the employee immediately cease.
- Termination of Employment: An employee on FMLA leave has no greater right to reinstatement than if the employee had not taken leave. Therefore, if an employer can show that the employee on FMLA leave would have been laid off or otherwise terminated even if they had not taken leave, the employee does not have to be restored to employment.
- Moonlighting: When an employee on FMLA leave violates an employer’s uniformly applied policy prohibiting outside or supplemental employment while on leave, the employer may deny reinstatement to the employee.
- Fraudulent Leave: An employee who fraudulently obtains FMLA leave need not be reinstated, and their leave ends at the time the employer discovers the employee’s fraud.
- Key Employees: The FMLA has an exception to reinstatement for an organization’s salaried workers who are the highest paid 10% of all employees employed by the employer within 75 miles of the employee’s worksite. These key employees need not be restored to employment following FMLA leave if the employer can show their reinstatement would cause substantial and grievous economic injury to the employer.
- Employee Unable to Perform the Job: If an employee is physically or mentally unable to perform an essential function of their position when their FMLA leave ends, the employee has no right to restoration to another position. The employer’s reinstatement obligations, however, may be affected by the reasonable accommodation requirement under the Americans with Disabilities Act.
Employees must generally be restored to the same or to an equivalent position upon returning from FMLA leave, so employers should think twice before deciding not to reinstate an employee when their FMLA leave ends. Nevertheless, if an employee falls within one of the exceptions to reinstatement, restoration to employment need not occur. If you are unsure an employee falls within one of these exceptions, you should consult legal counsel—the necessity of reinstatement from FMLA leave may vary depending on the employee’s particular circumstances.
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