Worker returning from FMLA leave? You can refuse to reinstate
Under the law, an employee who takes FMLA leave is entitled to return to the same position he or she held when leave started or to an equivalent position. However, there are situations when employers can refuse to reinstate workers returning from FMLA leave—but only under limited circumstances. It’s legal if:
- You’re eliminating a position because of conditions unrelated to the employee’s FMLA leave
- You would have terminated the employee anyway because of performance or discipline problems
- The employee can no longer perform the job.
Eliminating the job
If you are implementing a reduction in force due to the economy or reorganizing your company, you may be able to eliminate a returning worker’s job.
But you can’t consider the worker’s FMLA leave when making that decision. If you use absenteeism as one of the criteria to decide which employees stay and which go, you must exclude from the calculation any time a worker was on FMLA leave or was absent due to an FMLA-covered event.
Employee headed for firing
What if an employee returning from leave was facing discharge for poor performance before taking leave? What if you discovered work problems during the absence? Then you can take disciplinary action, including termination.
Be prepared to defend your actions with concrete evidence. And be consistent. If you fire a poor performer who took FMLA leave but retain one with a similar record who didn’t, you’re opening yourself to a retaliation lawsuit.
Advice: Document every decision concerning reorganizations, layoffs and discipline. Use objective, job-related criteria to make those decisions. That makes it harder for a court to second-guess your decisions.
Unable to perform the job
Under some circumstances, you don’t have to reinstate workers who are no longer capable of performing the positions they held before taking FMLA leave. That could happen, for example, if a worker had a serious health condition that hasn’t resolved itself enough to allow the employee to return full time.
But, if the condition also qualifies as a disability under the ADA, you may have to offer reasonable accommodations.
For example, workers returning after major heart surgery may have new restrictions. Those with cancer may need additional time off for chemotherapy or radiation treatments. Although someone may no longer be eligible for unpaid time off under the FMLA, that time off may be a reasonable accommodation under the ADA.
Reinstatement & ‘key’ employees
Under the FMLA, employers can designate a class of “key” employees to whom they can deny reinstatement after taking FMLA leave, but only if reinstatement would cause “substantial and grievous economic injury” to the business.
You can’t deny FMLA leave to a key employee, only reinstatement.
To qualify as a key employee, the worker’s salary (including base pay and bonuses) must be in the top 10% at your organization. Stock options, benefits and perks aren’t included in the salary calculation.
Also, you don’t have to determine whether someone is in the top 10% until he or she requests the leave.
