The Family Medical Leave Act (FMLA) allows up to 12 weeks of unpaid leave to be taken in cases of medical emergency for you or a close relative, such as a spouse or child. Most of the time, one is entitled to return to the same position without any changes once the leave has ended. However, when returning to work after FMLA, employers will sometimes try to discriminate against FMLA takers (especially if they are disabled or new mothers) and attempt to avoid reinstatement. It is imperative to understand the criteria that may or may not allow your employer to do so.
Right To An Equivalent Position
Perhaps the most important right guaranteed by the FMLA is the right, with rare exceptions, to return to the same position (or to a substantially equivalent one to the position) you occupied before going on leave. What constitutes a “substantially equivalent” position has been a matter of debate, and the general consensus is that several factors must be identical or very similar or the position is not equivalent. For example, the same job at a different worksite is not equivalent if it substantially adds time or money (in tolls or transport costs) to the employee’s commute.
While the right to an equivalent position is largely guaranteed, an employer is permitted in certain circumstances to request that an employee show they are fit to resume their duties, especially if FMLA leave was used for their own serious illness, such as cancer treatment. As long as the policy is “uniformly applied” and not randomly required of disparate individuals, this is generally acceptable, but sometimes an employer will use such a certification request as an excuse to deny a disabled person their job back.
When Is Reinstatement Not Required?
There are occasions when reinstatement to an identical position is simply not required, though they are few and far between. One major one is that an employee comes back being unable to perform one or more essential job functions – however, if this turns out to be the case, they may be entitled to a reasonable accommodation under the Americans With Disabilities Act (ADA). Each case is different, but if a worker can be accommodated without an undue burden to the employer, the general rule is that an employer should attempt to do so.
Reinstatement after returning to work from FMLA is also not required if it is determined that the employee took said leave when they should not have been able to, or if the employee is a “key” employee, meaning that they are one of the 10 percent highest paid employees within 75 miles of their worksite. Key employees going on leave and then being reinstated can actually cause financial hardship for a company in some situations, because FMLA leave-takers are entitled to any raises they would have gotten while on leave, as well as any other monetary benefits. The Department of Labor classifies the reinstatement of such employees as a potential undue burden because of this financial shift.
Contact An Employment Law Attorney
FMLA leave can be critical to protecting your health and the well-being of loved ones. If you encounter resistance upon returning to work from FMLA, you may have a case against your employer. Attorney A. Christopher Potts has considerable experience dealing with FMLA related disputes and is eager to help you develop a solution. Contact the office today to set up an initial appointment.