Compliance/Best Practices Employment Law Legal Topics

Limits on Reinstatement After Employee Leave

When an employee’s leave is over, is there always a right to be reinstated? Short answer: Usually. But there are notable limits on reinstatement.

Under the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or the New Parent Leave Act (NPLA), an employee has a general right to be “restored” (FMLA) or “reinstated” (CFRA) to the same or to an “equivalent” (FMLA) or “comparable” (CFRA/NPLA) position when leave ends. 29 USC §2614(a)(1)(A)–(B); 29 CFR §825.214; Govt C §§12945.2(a), 12945.6(a)(1); 2 Cal Code Regs §11089(a)(2).

But here are the limits on this general rule:

  • Employee is entitled to no greater rights than if he or she had not taken leave. An employee has no greater right to reinstatement, other benefits, or conditions of employment than if the employee had been continuously employed during the period of leave. 29 USC §2614(a)(3); 29 CFR §825.216(a); 2 Cal Code Regs §11089(d)(1).
  • No reinstatement is required if the job was eliminated or reduced. If an employee is laid off during the leave, the employer’s responsibility to reinstate the employee ceases at the time the employee is laid off, as long as the employer has no continuing obligations under a collective bargaining agreement or otherwise. 29 CFR §825.216(a)(1); 2 Cal Code Regs §11089(d)(1)(A). If an employee was hired for a specific term or to work on a particular project, the employer isn’t obligated to reinstate the employee if the term or project ends during the leave and the employer wouldn’t otherwise have continued to employ the employee.
  • If the employee can’t perform the job, there’s no right to reinstatement. Under the FMLA, if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers’ compensation, the employee has no right to reinstatement to another position. However, an employer that’s not obligated to reinstate an employee under the FMLA or the CFRA may nevertheless be required to do so by the Fair Employment and Housing Act, the Americans with Disabilities Act, or workers’ compensation laws. 29 CFR §825.216(c).
  • The employer may deny reinstatement of a “key employee.” An employer may refuse to reinstate a “key employee” if doing so “is necessary to prevent substantial and grievous economic injury to the operations of the employer.” 29 USC §2614(b)(1)(A); Govt C §12945.2(r)(1)(B). But before doing so, the employer must follow specific notice procedures. 29 CFR §825.219; 2 Cal Code Regs §11089(d)(2)(D)–(G).
  • Reinstatement may be dependent on a fitness-for-duty certification. An employer may, in limited circumstances, delay reinstatement until an employee provides a required fitness-for-duty certification. 29 CFR §§825.216(b), 825.312(e), 825.313(d); 2 Cal Code Regs §11091(b)(2)(F).
  • There’s no reinstatement requirement if the leave was fraudulently obtained. An employer isn’t obligated to reinstate an employee who fraudulently obtained the leave. 29 CFR §825.216(d); 2 Cal Code Regs §11089(d)(3). For example, in Sharif v United Airlines, Inc. (4th Cir 2016) 841 F3d 199, 206, the evidence “paints the picture of an employee who used FMLA leave to avoid interrupting his vacation, and then gave a variety of inconsistent explanations for his behavior upon his return.”

For details on each of these limitations on reinstatement, turn to CEB’s Employee Leave Laws: Compliance and Litigation, chap 1.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

1 reply on “Limits on Reinstatement After Employee Leave”

Add your comment to the blog post

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s