The Essential Guide to Family & Medical Leave

212 | the essential guide to family and medical leave
Chapter Highlights
An employee returning from FMLA leave is
entitled to reinstatement to his or her former
position or an equivalent position, unless an
exception applies.
An equivalent position must be virtually identical
to the employee’s former position in pay,
benefits, job duties, worksite, shift, schedule,
and other job terms and conditions.
The employee must be reinstated immediately
upon returning from leave, as long as the employee
gave at least two work days, advance
notice of return.
You may require a returning employee to
provide a fitness-for-duty certification from a
health care provider if your company:
• has a consistently applied policy or practice
of requiring certifications from similarly
situated employees, and
• has an important, job-related reason for
requesting the certification.
When you reinstate an employee, you must
also restore the employee’s pay and benefits,
including any automatic raises that occurred
during leave.
Employees are entitled to the same insurance
coverage benefits and may not be required to
take a physical, wait for open enrollment, or
otherwise requalify for coverage.
You may not deny an employee an attendance,
safety, or other bonus that depends on
an absence of problems (rather than quantity
or quality of performance) solely because the
employee took FMLA leave.
You may not be required to reinstate an employee
under the FMLA if any of the following
are true:
• The employee cannot perform the
essential duties of the position (however,
the Americans with Disabilities Act may
require your company to make a reasonable
accommodation).
• The employee’s job was eliminated through
company restructuring or layoffs, and the
employee would have lost the job if he or
she hadn’t taken leave.
• The employee was fired for reasons
unrelated to taking FMLA leave (such as
poor performance or misconduct).
• The employee was hired for a limited term
or project, which has ended.
• The employee obtained FMLA leave
fraudulently (for example, by submitting a
forged or altered medical certification).
• The employee stated an unequivocal intent
not to return to work.
• The employee is a key employee (among
the highest-paid 10% of employees within
75 miles) and reinstatement would cause
substantial and grievous economic injury to
your company.
If an employee chooses not to return to work
following FMLA leave, you may recoup your
company’s share of the premium spent to
continue the employee’s health care coverage,
as well as amounts you paid to cover the
employee’s share of premiums to continue
other benefits.