FMLA Leave: 6 Legal Ways to Deny Reinstatement

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.