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Offering extra leave beyond FMLA? You don’t have to extend job return rights

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in FMLA Guidelines,Human Resources

Employees who take FMLA leave are entitled to be reinstated to their jobs if they return to work when their 12 weeks off expire. But many employers provide additional time off, since 12 weeks often isn’t long enough to recover from a serious health condition. Some even generously extend insurance coverage through the additional time off.

But if employers grant that additional leave, they don’t have to reinstate the employee to the same or an equivalent position when she returns.

Recent case: Carrie Reeves, who suffers from depression and a seizure disorder, had to take all her FMLA leave plus additional weeks off under Case Western Reserve University’s leave-of-absence policy. The university made it clear Reeves could have the additional leave and continue to receive health insurance coverage, but that reinstatement to her former job or the equivalent was not guaranteed.

When Reeves returned and was assigned to a different job, she sued, alleging her rights to reinstatement under the FMLA had been violated.

The court tossed out her case. It said she had already used her FMLA entitlement and Case Western didn’t have to extend the reinstatement guarantee just because it had a policy giving employees more leave than the FMLA mandates. (Reeves v. Case Western Reserve University, No. 1:07-CV-1860, ND OH, 2009)

Advice: Remember to count the first 12 weeks off as FMLA leave even if the employee is using paid leave—and let her know that’s what you are doing. Otherwise, you may owe an additional 12 weeks of time off and guaranteed reinstatement after the employee has used all other leave.

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