The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 241
Common Mistakes Regarding Reinstatement—
And How to Avoid Them
MistakE 1: Failing to reinstate employees on time.
Avoid This Mistake By:
• Checking in with employees who are on leave. Ask employees to update
you periodically on their plans to return to work. (Chapter 9 explains how.)
• Keeping track of employees on leave. Remember, you’ll have to save an
equivalent spot somewhere for returning employees—and you can’t wait
until they’re ready to come back to start looking for one.
Mistake 2: Mishandling benefits when an employee returns.
Avoid This Mistake By:
• Not requiring employees to requalify, reapply, or wait to restart their
benefits. Remember, you can’t require returning employees to do
anything in order to get their benefits back.
• Maintaining employee benefits during leave, if necessary to ensure
immediate reinstatement. Even if the employee chooses not to continue
disability or life insurance while on leave, you may have to so you can
reinstate it.
• Seeking reimbursement when legally entitled to it. If you continued
benefits that were not legally required, you can recoup the employee’s
share of the premium once the employee returns from leave.
Mistake 3: Mishandling reinstatement of key employees.
Avoid This Mistake By:
• Properly identifying key employees in the first place. If more than 10%
of your workforce are key employees, you didn’t get it right.
• Providing all necessary notices. If you’re going to refuse to reinstate a key
employee, you have to provide two written notices—and perhaps a third,
if the employee requests reinstatement.
• Allowing leave and continuing benefits. You can’t simply fire a key employee
who requests FMLA leave. While a key employee is on leave, he or she is
still employed by your company—and you have to allow leave (including
substitution of leave) and continue the employee’s health insurance coverage.