• Skip to primary navigation
  • Skip to main content

HRMorning

  • FREE RESOURCES
  • PREMIUM CONTENT
  • HR DEEP DIVES
  • PODCASTS
    • VOICES OF HR
    • WOMEN’S LEADERSHIP TODAY
  • LOGIN
  • SIGN UP FREE
  • Employment Law
  • Benefits
  • Recruiting
  • HR Technology
  • Payroll
  • Management
  • Women’s Leadership
  • More
    • Talent Management
    • Performance Management
    • Leadership & Strategy
    • Compensation
    • Policy & Procedures
    • Wellness
    • Staff Departure
    • HR Career & Self-Care
    • Health Care
    • Retirement Plans
  • Employment Law

FMLA Leave: 6 Legal Ways to Deny Reinstatement

Carol Warner
By: Carol Warner
  • Share on

About the Author

For nearly two decades, Carol Warner has analyzed the legal and financial realities behind workplace decisions, covering employment law, benefits, payroll and HR technology. She translates complex legal updates, regulatory shifts and vendor claims into plain language that HR teams can act on. Her focus is simple: What does this mean for employers, and what should they do next? Connect with her on LinkedIn.

Show Less
Last Updated: August 31, 2024
3 minute engagement

When conducting company layoffs or reorganizations, some employers may face this legally risky situation: denying reinstatement to an employee coming off FMLA leave.

As you know, the Family and Medical Leave Act provides 12 weeks of job-protected leave per year to eligible employees for several qualifying conditions.

And when the leave is up, employers must reinstate workers to their job — or provide an equivalent one. However, there are some exceptions to the rule.

6 Valid Defenses Against Reinstatement After FMLA Leave

Under the FMLA, employers must treat employees on FMLA leave as if they weren’t on leave — the same as any other employee would be treated.

That door swings both ways, meaning an employer may deny reinstatement under certain circumstances.

The U.S. Department of Labor (DOL) has outlined reinstatement limitations that spell out valid defenses for denying job restoration.

1. Abolished position

Job restoration may be denied if an employer can show that an employee would not otherwise have been employed when reinstatement was requested, such as if the position has been abolished through a layoff or the completion of a discrete 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.

To deny restoration to a key employee, an employer must:

  • Provide proper notification to the employee. Specifically, employers must notify the individual in writing that he or she is a key employee. And the decision to deny job restoration must be communicated in person or by certified mail, and
  • Determine that restoring the employee’s job would cause “substantial and grievous economic injury” to the employer’s operations. Importantly, the decision about the injury must be based on restoration — not on whether the employee’s absence would cause the injury, according to the DOL.

3. Lack of certification of ability to return to work

Employers can require a Fitness-for-Duty Certification verifying the employee is able to return to work from FMLA leave prompted by the employee’s own serious health condition.

If an employee fails to provide this medical certification and fails to request additional FMLA leave, employers may deny reinstatement.

Importantly, the employer must “have a uniformly applied policy or practice that requires similarly situated employees” to provide certification from their healthcare providers that the employee is able to return to work. (Bold in original.)

4. Expiration of leave

An employee’s right to reinstatement ends when the employee fails to return to work after using up the 12 weeks of leave provided under the FMLA — unless there is an overlap with the ADA or an analogous state family and medical leave law.

5. Proof of fraud

An employee who fraudulently qualified for FMLA leave is not entitled to FMLA protections covering job restoration and maintenance of healthcare benefits. In instances of FMLA fraud, employers may deny reinstatement.

6. Notification of intent to quit

Generally, if an employee provides “unequivocal notice of intent not to return to work,” an employer is no longer obligated to restore the employee to their job, according to the DOL’s elaws Advisors.

However, there’s one important caveat: An employer’s FMLA “obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.” (Bold and italics in original).

Download the DOL’s Family and Medical Leave Act Employer Guide for more information.

Filed under
  • Employment Law
  • Share on

Get the HRMorning Newsletter

With HRMorning arriving in your inbox, you will never miss critical stories on labor laws, benefits, retention and onboarding strategies.

  • This field is for validation purposes and should be left unchanged.
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form
  • This field is hidden when viewing the form

Free Training & Resources

EBOOK, White Papers

Beyond the script: A smarter chronic condition management strategy

Provided by Personify Health

White Papers

How Gwinnett County Strengthens Employee Wellbeing with Maven

Provided by Maven Clinic

Webinars

Five Things Successful Companies Consider When Changing Their HR Software Platform

Webinars

Effectively Hire and Train Your Employees in a Hybrid Workplace

SPONSORED CONTENT

HR Technology

sponsored content
The Best AI Software for HR Automation

Courtesy of G-P

Talent Management

sponsored content
Powerful Employee Retention Strategies for 2025: How to Keep Your Best People

Courtesy of PEOPLEGURU

Benefits

Health Care

Wellness

sponsored content
Proven Results: 5 Ways Teladoc Health Chronic Condition Management Transforms HR Outcomes

Courtesy of TELADOC HEALTH

Further Reading

  • Employment Law
  • Leadership & Strategy
The Silent Warning Inside Today’s Workplaces: Harassment Prevention Strategies Aren’t Landing

Nearly a decade after #MeToo ignited a global reckoning around workplace harassment, there was hope that workplaces would look fundamentall...

  • Employment Law
  • Payroll
I-9 Documents: Unexpected DHS Changes Prompt Reverification

Employers may need to reverify certain employees’ Form I-9 documents due to recent changes from the Department of Homeland Security (DHS)...

  • Employment Law
Religious accommodation case: City settles with DOJ

A recent settlement secured by the U.S. Department of Justice (DOJ) provides a basic lesson on how not to respond to requests for religious...

  • Employment Law
New Supreme Court Term: 6 Employment Cases to Watch

The U.S. Supreme Court’s 2024-25 term opened this week – and several employment issues are already on the docket.  Here are six...

  • Employment Law
EEOC Suit Ends With $1M Payout: Don’t Make This Mistake

An EEOC suit filed against a government contractor has ended with an agreement that calls for the contractor to pay more than $1 million an...

  • Employment Law
Successfully defend discrimination claims: 5 keys for employers

Anyone can sue for discrimination. But winning? That’s another thing. Here’s an example of how to properly defend a claim of unlawful r...

Get the latest from HRMorning in your inbox PLUS immediately access 10 FREE HR guides.

I WANT MY FREE GUIDES
HR Morning Logo
  • Facebook
  • Linked In
  • ABOUT HRMORNING
  • ADVERTISE WITH US
  • WRITE FOR US
  • CONTACT
  • Employment Law
  • Benefits
  • Recruiting
  • Talent Management
  • Performance Management
  • HR Technology
  • Leadership & Strategy
  • Compensation
  • Policy & Procedures
  • Wellness
  • Staff Departure
  • HR Career & Self-Care
  • Health Care
  • Retirement Plans
  • DEI

HRMorning, part of the Rover Insights Network, provides the latest HR and employment law news for HR professionals in the trenches of small-to-medium-sized businesses. Rather than simply regurgitating the day's headlines, HRMorning delivers actionable insights, helping HR execs understand what HR trends mean to their business.

Powered By Rover Insights
Privacy Policy | Terms of Service
Copyright© 2026 Rover Insights
HRMorning Logo

WELCOME BACK!

Enter your username and password below to log in

Forget Your Username or Password?

Reset Password

Lost your password? Please enter your username or email address. You will receive a link to create a new password via email.

Log In

Why do we need your credit card for a free trial?

We ask for your credit card to allow your subscription to continue should you decide to keep your membership beyond the free trial period.  This prevents any interruption of content access.

Your card will not be charged at any point during your 21 day free trial
and you may cancel at any time during your free trial.

During your free trial, you can cancel at any time with a single click on your “Account” page.  It’s that easy.