FMLA: When You Can Refuse to Reinstate a Worker

The FMLA allows employers to refuse to reinstate workers returning from FMLA leave under limited circumstances.

For example, if you have experienced a reduction in force due to the economy or a companywide reorganization, you may be able to eliminate a returning worker’s job. But you can’t consider the worker’s taking FMLA leave as a factor in the decision. That means you can’t create a layoff list that includes absenteeism as one of the criteria unless you exclude any time the worker was on FMLA leave or was absent due to an FMLA-covered event.

What if an employee returning from leave was facing discharge for poor performance before he or she took leave or you discovered work problems during the absence? Then you can take disciplinary action. Just be prepared to defend your actions with concrete evidence and make sure you treat every worker with a similar work record the same way.

If you fire a worker with a poor performance record who took FMLA leave but retain one with a similar record who didn’t, you’re opening yourself to a retaliation lawsuit. As always, good records are essential. Always document every decision, reorganization and layoff decision, and use objective, job-related criteria for those decisions. Doing so minimizes the chances of a successful lawsuit second-guessing your decisions.

Under some circumstances, you’re not required to reinstate workers who are no longer capable of performing the positions they held before taking FMLA leave. This 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. However, if the condition also qualifies as a disability under the ADA, you may have to offer reasonable accommodations. This is an increasingly common problem.


For example, workers returning after major heart surgery may have new restrictions or 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.

Tip: You should do a separate analysis of the situation using the ADA criteria. For all practical purposes, the FMLA’s requirement of 12 weeks’ unpaid leave has become the minimum accommodation required by the ADA. 

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 their business “substantial and grievous economic injury.”

You can’t deny FMLA leave to a key employee, only reinstatement. No precise test exists to determine such an injury, so until case law on this matter develops, there are no clear guidelines.

To qualify as a key employee, the individual’s salary (including base pay and bonuses) must be in the top 10 percent 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 percent until he or she requests the leave.