Human Resources News & Insights

FMLA leave: 6 ways to legally deny reinstatement

With layoffs, reorganizations and cutbacks, more and more employers face this legally risky situation: denying reinstatement to an employee coming off FMLA leave. Court cases and rulings have shown what the valid defenses are when you’re forced to make that move. 

1. Abolished position.  The law essentially reads that you should treat an employee on FMLA leave the same as if the person weren’t on leave. That door swings both ways, meaning an employer may deny reinstatement if you can show that the employee would not otherwise have been employed at the time reinstatement is requested; for instance, if the position has been abolished by layoff or completion of a project.

2. Key-employee exception. A “key employee” is defined as a salaried employee who is among the highest paid 10% of all salaried and nonsalaried employees within  a radius of 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.  You can require medical certifications verifying the employee is able to return from FMLA leave prompted by the employee’s own serious health condition. If the employee fails to provide medical certification, you can deny reinstatement.

4. Expiration of leave. An employee’s right to reinstatement ends if the employee fails to return to work after using up the 12 weeks’ leave provided by the law, unless protected by other leave laws or company policies.

5. Proof of fraud. If you can show that an employee fraudulently qualified for FMLA leave, by falsifying documents or some other means, you can deny reinstatement.

6. Notification of intent to quit.  If an employee informs you that he or she doesn’t intend to return to work, that’s considered a bar to reinstatement.

Click here for the U.S. Department of Labor’s summary of employer responsibilities under the FMLA.


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  • Joe S.

    In your article titled, FMLA Leave: 6 ways to legally deny reinstatement, you state in item no. 3 that lack of certification of ability to return to work may be used to deny reinstatement. I would caution employers contemplating the use of this general rule when dealing with intermittent FMLA cases. If I’m accurately interpretting FMLA Regs, an employer may not require fitness for duty certification for RTW from intermittent FMLA Leaves. You can get in to trouble by denying an employee reinstatement in this instance.