“An employer must return an eligible employee to the position that he or she held when the leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions.”
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FMLA Compliance Review
Right to Reinstatement
By Christopher W. Olmsted
At the end of an FMLA leave, an employer must usually take an employee back into the same or an equivalent job. The same rules apply under the California Family Rights Act (“CFRA”). Below is a review of the employer’s obligations.
Same or Equivalent Position: An employer must return an eligible employee to the position that he or she held when the leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions.
To be considered an equivalent position, it must include: same privileges, prerequisites, status, at same or a geographically proximate worksite and must involve the same or substantially similar duties and responsibilities that entail the same or substantially similar skill, effort, responsibility and authority.
The right to be reinstated exists even if the employee has been replaced or the position was restructured to accommodate the absence. Reinstatement is guaranteed at the time leave is granted.
Intent to return to work: During the leave, an employer may require periodic reports on status and intent to return to work; any such policy may not be discriminatory and must consider facts related to each leave. If there is an unequivocal notice of intent not to return, the employer’s duty to maintain health care benefits and to reinstate end.
Fitness-for-Duty: As a condition for reinstatement, the employer can require an employee to provide medical certification that employee is able to resume work. ADA requirements of job-related and consistent with business necessity apply.
The certification need only state the employee’s ability to return to work.
The employee bears costs associated with report.
The employer must inform the employee of the need for report at time it gives employee notice of rights and obligations of leave.
An employer can delay reinstatement until the required report is submitted, unless the employer fails to provide proper notice of rights/obligations.
There is no right to report from employee where intermittent leave is taken.
Where employee is unable to return to work, the employer is permitted to obtain certification of the inability to return (failure to return entitles employer to reimbursement of premiums paid.)
Pursuant to uniformly applied policy, if either fitness for duty or medical certification for inability to return due to a serious health condition is not provided by employee at conclusion of approved leave, the employee may be terminated.
Reinstatement Date: Reinstatement must occur by the specific date agreed upon at the time leave commences.
Alternatively, if the reinstatement date differs from that originally agreed upon, the employee must be reinstated within two business days after providing notice to the employer of the readiness to return.
In some cases, employees may enjoy legal protections beyond the 12-week period under other laws.
Defenses to Reinstatement
1. Unavailability of position.
An employee has no greater right to reinstatement than if he or she had been continuously employed during leave. An employer may deny reinstatement if it can show that the employee would not otherwise have been employed at the time reinstatement is requested (e.g., lay off, hired for specified term or project).
2. Key-Employee exception.
“Key employee” is defined as a salaried employee who is among the highest paid 10 percent of all salaried and non-salaried employees employed by the employer within 75 miles of his or her worksite. With proper notice, key employees need not be reinstated.
3. Lack of Certification of Ability to Return to Work (Fitness for Duty).
An employer may require medical certifications verifying the employee is able to return from medical leave prompted by their own serious health condition. Pursuant to a uniformly applied policy, failure to provide fitness for duty report can result in delay of reinstatement.
4. Expiration of Protected Leave.
The total amount of time available under the FMLA is 12 workweeks of leave during a 12-month period. An employee’s right to reinstatement will end if the employee fails to return to work at the conclusion of the 12-week period, unless protected by other leave laws. Also, an employee who fraudulently obtains leave from an employer is not protected by the reinstatement provision. Also, if an employee advises the employer that he or she does not have the intent to return to work, the right to continued leave or reinstatement will end.
For More On FMLA and other leaves, register for our annual FMLA seminar scheduled for November 13, 2008: Register for Leaves of Absences In California.
More Legal Update articles.
Download entire November Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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