The Essential Guide to Family & Medical Leave

232 | the essential guide to family and medical leave
You Must Allow the Employee to Requalify for the Position
Sometimes, an employee is physically able to do the job but is no longer
qualified for the position as a result of taking leave. For example, the employee
may have been unable to complete a necessary course, fulfill a certification
requirement, or meet a service standard (such as a minimum number of hours
in training). In these situations, you must give the employee a reasonable opportunity
to fulfill any necessary qualifications after returning to work.
That’s not the end of the story, however. If the employee has a disability
as defined by the Americans with Disabilities Act (ADA), your company
may be obligated to provide a reasonable accommodation: a change to the
workplace or job that will allow the employee to do the essential functions
of the position. In this situation, you would no longer have a reinstatement
obligation under the FMLA, but you might have a legal duty to return the
employee to a modified position under the ADA. Chapter 11 explains the
ADA in more detail.
You might also have an obligation to give the employee more time off.
Extended leave might qualify as a reasonable accommodation under the
ADA, if it allows the employee to do the job upon return. If the employee
is receiving workers’ compensation, state law might also require you to hold
the employee’s job for a longer period of time. Although the employee has
no further rights under the FMLA—and, therefore, has no valid legal claim
against your company for failure to reinstate—the employee might still have
rights under these other laws. See Chapter 11 for more information.
Fraud
If an employee obtains FMLA leave through fraud, the company is not obligated
to reinstate the employee. This sometimes occurs when the employee
submits false documents (such as a fake or altered medical certification) to
get FMLA leave. In some cases, companies find out about the fraud only
accidentally, when another employee happens to see the leave-taking employee
engaged in activities that seem incompatible with the reason for leave.