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Right to FMLA Reinstatement Is Not Absolute

By Allen Smith  8/27/2013
The most common misconception among employers about the reinstatement requirement of the Family and Medical Leave Act (FMLA) is that it is an absolute requirement, Joseph Lynett, an attorney at Jackson Lewis in White Plains, N.Y., told SHRM Online.

“Many employers believe that there are no limitations on the employee’s reinstatement right under the FMLA when, in fact, there are several,” he said.

Along with not being mandatory for individuals designated as key employees, reinstatement, if it would result in substantial economic injury, isn’t required “where an employee would have been laid off or terminated anyway or where a shift has been eliminated,” Lynett explained. And overtime may be decreased during and after the leave, he added.

“Reinstatement is also not required if an employee was hired for a specific term or only to perform work on a discrete project,” Lynett continued. “An employee who fraudulently obtains FMLA leave has no right to be reinstated, as well. Finally—and this is important—an employee who is unable to perform the essential functions of her job is not entitled to reinstatement under the FMLA. However, an employer’s obligations in this situation may be under the ADA [Americans with Disabilities Act] or analogous state and local disability discrimination law.”

Strict Reinstatement Requirement

But the FMLA reinstatement requirement is otherwise strict.

 When a worker is on FMLA leave, companies often decide that “the employee is not good or is not necessary and start thinking about terminating the employee as part of a layoff or for poor performance,” said Megan Norris, an attorney at Miller Canfield in Detroit.

“An employee’s right to reinstatement is not absolute, and an employee can certainly be subject to a layoff or termination,” she pointed out. “However, if the termination is because the employee took the leave, that violates the FMLA. So when there were no documented performance problems prior to the leave, the employer takes a huge risk making this kind of decision while the employee is out unless it is truly objective—for example, everybody on that shift was laid off.”

Employers usually understand that they have to return an individual to an equivalent position that maintains his or her pay and benefits, said Jeff Nowak, an attorney at Franczek Radelet in Chicago. “However, too many employers forget the remaining portion of the regulation—that the position must include virtually identical working conditions, privileges and status. The ‘status’ is particularly difficult for employers to administer: First, because the DOL [Department of Labor] has not defined the term, and second, because it is extremely difficult to apply in practice. Indeed, the ‘status’ that a position connotes is so subjective a term that it nearly renders it meaningless.

 “Nevertheless,” he added, “these nebulous kinds of terms should serve as a warning to employers that there is not a whole lot of flexibility returning the employee to a different position. Generally speaking, if the new position includes more clerical duties; requires different skills or negates skills previously necessary for the employee’s position; offers fewer opportunities for advancement than before; removes supervisory duties and authority; and arguably is in lower standing within the workforce, at least from an objective standpoint, the employer runs a substantial risk of violating the FMLA.”

Norris cautioned that “the mere fact that pay, benefits and even title are the same will not be enough if the jobs are different. So, for example, while you could probably move a manufacturing employee from one place on the line to another, you could not move an employee from a desk job to the line even if the titles and the pay are the same.”

An organization would also be violating the FMLA if it delayed allowing an employee to return to work. In announcing a settlement on Aug. 7, 2013, the DOL said that TGI Fridays had failed to reinstate an employee to the same or an equivalent position—including pay, benefits and other terms of employment—and that the worker was not allowed to return immediately after FMLA-covered leave. The delay caused the employee to lose three weeks’ pay.

A worker needs to provide just two business days’ notice that he or she intends to return to work, Nowak said.

And if an employee who is filling in for a colleague on leave is in the middle of a project when the individual asks to return, the substituting employee probably can’t finish the project before the co-worker is returned to his or her job, Lynett said.

“The FMLA’s reinstatement obligation is generally strict,” he explained. “Even a reinstatement that could pose serious operational problems could not be delayed under the FMLA.”

“The safest course in this situation would be to provide the returning employee the option of either picking up the project from the substituting employee or allowing the substituting employee to complete it, while avoiding any statements that could be characterized as attempting to induce the returning employee to forgo the project,” recommended Casey Kurtz, co-chair of Littler Mendelson’s Leave of Absence and Disability Accommodation Practice Group in its Pittsburgh office.

Remind Managers About the ADA

Kurtz added that the most common misconception among employers about the FMLA’s reinstatement requirement is that an employee’s right to reinstatement to his or her existing position always ends as of the date the worker fails to return after using up FMLA leave.

 “In most circumstances where the employee is unable to return to his or her position after exhaustion of his or her 12-week FMLA entitlement due to the employee’s own medical condition, the ADA requires the employer to engage in the interactive accommodation process to explore whether or not the employee’s continuing restrictions are caused by a ‘disability’ and whether or not there are any reasonable accommodations including, but not limited to, the provision of additional leave separate from FMLA leave that will enable the employee to perform the essential functions of his or her position,” he explained.

“Because the ADA often takes a back seat while a medically impaired employee is choosing to take advantage of his or her FMLA-leave entitlement, some employers neglect to recognize that the disability law’s protections can effectively reactivate when FMLA obligations expire,” Kurtz said.

Anne Larson, an attorney at Ogletree Deakins in Chicago, agreed: “If employees cannot return to their jobs when their 12-week FMLA entitlement ends, they plainly lose their FMLA ‘job restoration’ rights. However, that doesn’t mean that the employer can fire these employees without assessing its potential ADA exposure. The employee’s serious health condition may also constitute a disability under the ADA, which triggers the employer’s obligation to engage in the interactive process. An extension of the employee’s leave may be a reasonable accommodation under the ADA, even when employees have lost their FMLA job-restoration rights.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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