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- Family and Medical Leave Act Advisor

Reinstatement Limitations

Following FMLA Leave, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if he or she had not taken leave. However, an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:

  • The employer's responsibilities to the employee under the FMLA cease at the time the employee is laid off (provided the employer has no continuing obligations under a collective bargaining agreement or otherwise). However, the employer has the burden of proving that the employee would have been laid off during the FMLA leave period even if the employee had not taken leave and, therefore, is not entitled to restoration.
    • Restoration to a job slated for lay-off when the employee's original position is not would not meet the requirements of an equivalent position.
  • An employee would not be entitled to return to work a shift that has been eliminated or to the original number of overtime hours if overtime hours have been decreased.
  • The employer has no obligation to restore an employee who was hired for a specific term or only to perform work on a discrete project if the employment term or project is over and the employer would not otherwise have continued to employ the employee. On the other hand, if an employee was hired to perform work on a contract, and after that contract period the contract was awarded to another contractor, the successor contractor may be required to restore the employee if the employer is a successor in interest.

Furthermore:

  • An employer may deny job restoration to certain "key employees" if denial is necessary to prevent substantial and grievous economic injury to the operations of the employer. (See Key Employees and Their Rights for more details.)
  • If the employee is unable to perform an essential function of the position because of a physical or mental condition, the employee has no right to restoration to another position under the FMLA. However, the American with Disabilities Act (ADA), state leave laws, or workers' compensation laws may govern the employer's obligations.
  • An employer may delay restoration to an employee who fails to provide a properly requested fitness-for-duty certificate to return to work. (See Fitness-for-Duty Certification.)
  • If the employer has a uniformly applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer without such a policy may not deny benefits to which an employee is entitled under the FMLA on this basis unless the FMLA leave was fraudulently obtained. An employee who fraudulently obtains FMLA leave is not protected by the FMLA.

Continue to Enforcement of the FMLA or Return Employee Rights and Responsibilities Menu.

For more information on this aspect of the FMLA, see the FMLA regulations: ยง 825.216