Returning to Work after FMLA Leave: What Can I Do and Expect?

austin-campbellThe Family and Medical Leave Act gives eligible employees the right to up to 12 weeks of protected, unpaid leave during any 12-month period. Probably the most important part of FMLA leave is the “protected” aspect—the right, when your leave ends, to be restored to your old job or an equivalent position. Unfortunately, that is not always as straightforward as it sounds, and many employees have been surprised by what was waiting for them at the end of their FMLA leave. An employer that does not return you to work as required by law may be liable for interfering in your FMLA rights.

This article looks at what that “return to work” requirement involves, what your rights as an employee are when it comes to returning from FMLA leave, and some things you might be able to do to protect those rights.

If you are entitled to FMLA leave, your employer has to return you to work at the end of that leave*. But there are some proactive steps you can take to protect that right. An employer may not be required to return you to work if you overstay your leave. Because of that, to play it safe an employee should contact their employer before their leave ends if they have not heard from their employer. First, you can make it clear you plan to return at the end of your leave. Second, you can ask about the details of your return: things like your schedule and what your job will look like when you come back. And of course, you should actually report to work promptly after your leave ends.

What if you are coming back after you recovered from your own serious medical condition? There, your employer can usually ask that a doctor clear you to perform the essential functions of your job before restoring you to it. Generally speaking, it’s a good idea to cooperate with that request to prove you can still do your job. On the other hand, it is improper for your employer to do things like demand proof above and beyond what it would normally require to return someone to work, or to reject your doctor’s all-clear and demand an independent fitness-for-duty exam.

A particularly complicated part of job restoration is that your employer does not have to put you in the exact same position you had before your leave if it cannot do so. For instance, if your employer can prove you would have lost your position separately from your FMLA leave, it doesn’t have to return you to that position. So, if your job was eliminated independently of your leave and the reality is that it just no longer exists at all, the company would not be obligated to return you to that non-existent position. On the other hand, if your employer actually eliminated your position because you took FMLA leave, or claims that it eliminated it when that is not true, failing to return you to that post may still be a violation of the FMLA.

If it cannot put you in your same position after your FMLA ends, your employer is supposed to put you in an “equivalent” position. That means one that is virtually identical in terms of pay, job duties, benefits, and other employment terms and conditions—such as your shift or where you worked. If your employer does things like cutting your pay when you return to work, denying you opportunities to earn as much money as before, moving you to a worse shift, or transferring you somewhere to increase your commute dramatically, that may be illegal interference in your FMLA rights or retaliation for taking FMLA leave. If you would have received unconditional bonuses or cost-of-living increases to your pay while you were out on FMLA leave, your employer has to extend those to you as well when you return.

If you are concerned whether your employer will comply with the law when you return from FMLA leave, or if your employer fired you or otherwise refused to return you to the same or an equivalent position after you came back to work, you should consult with an employment attorney.

*One narrow exception to this rule affects certain “key employees.” That only applies if you are within the top 10 percent of salaried employees within 75 miles of your worksite, and then only when your employer (1) can prove that replacing you outright instead of returning you at the end of your leave is necessary to prevent substantial and grievous harm to the company, and (2) gives you written notice when you request FMLA leave that it cannot not return you to work.
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