The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 237
Even if you determine that you intend to deny reinstatement, you must
continue the employee’s health benefits while the employee is on FMLA
leave. The employee’s FMLA rights continue unless and until the employee
gives unequivocal notice that he or she doesn’t intend to return to work or
you actually deny the employee reinstatement at the conclusion of his or her
FMLA leave. Also, you may not recover your company’s share of health care
premiums paid while the key employee was on leave.
Handling a Key Employee’s Request for Reinstatement
Even if you notify a key employee that he or she will be denied reinstatement
and the employee doesn’t return to work, the employee still has a right to
request reinstatement after using FMLA leave. If the employee makes this request,
you must redetermine, based on the facts available to you at that time,
whether reinstatement would cause substantial and grievous economic injury.
If you conclude that such injury would result from reinstating the
employee, you must notify the employee of this conclusion in writing. (You
can modify the sample form above for this purpose.) If you reach a different
conclusion—that is, you decide that the company won’t suffer such an
injury—then you must reinstate the employee according to the usual rules.
Example: Let’s consider Carlos, the employee who received the sample notice of
substantial and grievous economic injury, above. When Carol sent this notice, she
had determined that reinstatement would cause such an injury. If Carlos doesn’t
return to work by the deadline Carol imposed, but instead requests reinstatement
when his leave ends, Carol must again determine whether reinstating him would
injure the company.
If the company already hired a permanent replacement and paying both Carlos
and the replacement would significantly harm the company’s finances, Carol could
justifiably conclude that she doesn’t have to reinstate Carlos. On the other hand, if
Carol were unable to find a replacement, and the company received extensions on its
filing deadlines, reinstating Carlos might not cause such an injury—in fact, it might
be exactly what the company needs. In this situation, Carol may not refuse to reinstate
Carlos. Instead, she must reinstate him according to the rules explained in “The
Basic Reinstatement Right,” above.