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Toll Free: 877.880.

Phone: 281.880.6525

Handling Employees at the End of

an FMLA Leave


The Family and Medical Leave Act (FMLA) entitles eligible employees to take
up to 12 weeks of unpaid, job-protected leave, over a one-year period. The
leave may be for specified family and medical reasons, with continuation of
group health insurance coverage under the same terms and conditions as if
the employee had not taken leave. Up to 26 weeks leave is permitted to care
for military service members under certain conditions.

A key phrase is "job-protected." But as the law is written and has been
interpreted since its enactment in 1993, job protection is not absolute. For
example, the law doesn't cover "key employees" when it comes to
reinstatement. Key employees are defined as those who are salaried, and
among the highest paid 10% of all the employees who work within a 75-mile
radius of the employee's worksite.
However, several strings are attached to that exemption. First, to deny
"restoration" to a key employee, you must make a good-faith determination
that reinstating the employee will cause "substantial and grievous economic
injury" to your operations.


Justification Requirement
There's more. If you foresee possibly denying reinstatement to that key
employee, you need to give him or her written notice. You also need to
explain your rationale for your tentative decision in writing (by registered
mail), or in person.

If the leave has already begun when you issue this notice, the DOL requires
that you "provide the employee a reasonable time in which to return to work,
taking into account the circumstances, such as the length of the leave and the
urgency of the need for the employee to return."
None of this means, however, that the key person isn't still entitled to the full
12 weeks of health coverage during the leave period unless the employee
informs you before the end of that period that he or she doesn't intend to
return to work.
Finally, at the end of the 12 weeks, the key person can still make a case for
reinstatement, which you must evaluate before rendering a final decision
about that individual's employment.


Exceptions for Regular Employees

What about non-key employees?
The FMLA does allow you to deny reinstatement to such an employee in
certain circumstances, for example, if that action would result in substantial
economic injury to the employer and the employee would have been laid off
anyway. Another example is when the employee's entire shift is being
eliminated. In any case, it must be demonstrably clear that you aren't simply
denying reinstatement due to the employee's need to take advantage of the


Here are some more exceptions when denial of job restoration may be

The employee was originally hired only for a specific period of time, or
only to work on a stand-alone project,

The employee is no longer able to perform the essential functions of the

job (although this determination could depend upon requirements of the
Americans with Disabilities Act and state disability laws), or

Fraud is involved in the employee's original request for FMLA leave.

When the circumstances dictate that the employee will be reinstated after the
leave period, it must, according to the DOL, be to an "equivalent position
that is virtually identical to the employee's former position in terms of pay,
benefits and working conditions. It must involve the same or substantially
similar duties and responsibilities, which must entail substantially equivalent
skill, effort, responsibility and authority."


Meaning of "Equivalent"
To some extent, "equivalent" is in the eye of the beholder. In addition to the
description above, the DOL says the reinstated employee's job must also have
similar "status" to the original job, and:

The job must be in the same or a "geographically proximate" worksite,

The employee is generally entitled to return to the same shift, or the

same or an equivalent work schedule, and

The employee must have the same or an equivalent opportunity for

bonuses, profit-sharing and other similar discretionary and nondiscretionary payments.


However, nothing prevents you from changing details such as the returning
employee's position, location or shift, if the changes better suit the current
needs of that employee. Be aware, this determination is left to the employee,
not the employer.

Finally, the FMLA recognizes "inevitable small differences" between jobs that
are deemed equivalent. "The requirement that an employee be restored to
the same or equivalent job does not extend to de minimus, intangible or
immeasurable aspects of the job," the DOL states.
Under most circumstances employers are happy to see their employees return
to work after an absence, so quibbling over the details of FMLA requirements
is unnecessary. Nevertheless, the law is not one-sided, and it's always good to
know your rights as an employer for the occasional exception.


14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA

Toll Free : 877.880.4477
Phone : 281.880.6525
: 281.866.9426

E-mail : info@hrp.net