Returning to Work After FMLA Leave for a Disability

Learn what happens when you return to work (or when you don't return to work) after taking FMLA medical leave for a disability.

By , J.D. UC Berkeley School of Law
Updated 2/27/2023

If you work for an employer covered by the Family and Medical Leave Act (FMLA), you have the right to take time off work for serious medical conditions and short-term disabilities. When you take FMLA leave, you have the right to get your job back when your leave is over. This article will discuss how this job protection works, including your right to reinstatement and when you might be able to get more time off.

Your Right to Get Your Job Back After FMLA Leave

When you return from FMLA leave, you have the right to be "reinstated" to your former position—that is, to get your old job back—or to be given an "equivalent" position.

Your employer can require you to give two days' notice before returning to work after FMLA leave. But as long as you give the required notice, your employer must put you back to work right away.

But, if you exhaust your FMLA leave entitlement and are unable to return to work, your employer isn't required to keep your job open for you or restore you to your old position once you're ready to return to work.

What Is an Equivalent Position?

An equivalent position is one that is nearly identical to the job you held before taking leave in every important respect, including:

  • pay
  • benefits
  • job duties
  • work site, and
  • other terms and conditions.

Exceptions to Your Right to Reinstatement After FMLA Leave

There are a few exceptions to your general right to reinstatement upon returning to work after disability leave. Your employer can refuse to give you your job back in any of the following situations:

  • You would have lost your job even if you hadn't taken FMLA leave (for example, because your entire department was laid off).
  • You took FMLA leave fraudulently (for instance, you lied about your health condition or falsified your medical certification).
  • You're a "key employee"—one of the highest-paid 10% of your company's employees within 75 miles of your work site—and bringing you back on payroll would cause the company "substantial and grievous economic injury." If you fit within this exception, your employer must notify you before your leave starts.
  • You can't perform an essential function of the job.

Essential functions are the duties that are central to the job, not inessential tasks that aren't a core part of the job. If you can perform the essential functions of your job with reasonable accommodations, you may be able to get your job back; see below

Getting Your Pay Restored After Taking Time Off for a Disability

When you get your job back after FMLA leave, you're entitled to the same pay you received before you took leave. This includes your hourly wage or salary, as well as getting back the same opportunities to earn additional pay that you had before your FMLA leave, including:

  • commissions
  • bonuses, or
  • overtime before.

What about promotions or raises that you would have received if you weren't out on disability leave?

Annual COLA Raises

You're entitled to any automatic raises you would've received if you hadn't taken leave. For example, if your company gives employees annual raises to help them keep up with the cost of living, you're entitled to the same raise, even if you were out on leave when it went into effect.

Raises That Aren't Automatic

If a raise isn't automatic but is instead based on performance or seniority, you must be treated the same as employees who take unpaid leave for other reasons. The same is true of bonuses.

For example, if you don't meet the target performance, attendance, or other criteria for earning a bonus because you're out on FMLA leave, your employer doesn't have to give you the bonus; that is, unless your employer gives the bonus to other employees who miss the target because they're out on another type of unpaid leave.

Receiving Benefits When Taking Time Off for a Disability

One of the advantages of taking leave under the FMLA is that the law gives you the right to keep your group health insurance while you're off work. Your employer must continue paying its usual share of the premium while you're off work, and you must pay your usual share, too (if any).

But you don't have to keep your group health plan when you're on FMLA leave if you don't want to. And your employer can cut off your benefits if you're more than 30 days late paying your share of the premium.

If your health benefits stop for any reason while you're on FMLA leave, your employer must restore them when you return to work. Your employer can't require you to do any of the following as a condition of restarting your health benefits:

  • wait for open enrollment
  • take a physical, or
  • requalify for any benefits.

When you return to work after taking FMLA leave, you're entitled to have all your employee benefits restored at the same levels—subject to any company-wide changes that took place while you were out. For example, if the company changed its life insurance plan, you aren't entitled to return to the old plan, but you can join the new one that you'd have moved to if you hadn't taken leave.

FMLA Return to Work Guidelines

Under the FMLA, both you and your employer have certain rights and responsibilities surrounding your use of FMLA leave.

Guidelines for Employers After an FMLA Request

When you request FMLA leave, your employer must let you know whether or not you're eligible for FMLA leave within five business days of your leave request. At the same time as that your employer issues that notice, your employer must also:

  • explain why you're not eligible for FMLA leave (if you're not)
  • give you a definition of the 12-month period your employer uses to keep track of FMLA leave time off, such as:
    • calendar year
    • 12 months from the first time you take leave
    • a fixed year based on a specific date, like your hire date or work anniversary, or
    • a rolling 12-month period measured backward from the date you use FMLA leave
  • tell you whether you'll need to provide medical certification from a health care provider
  • tell you about your right to use paid leave (sick pay, vacation, and PTO) during your time off and whether you'll be required to use it during your FMLA leave
  • explain your right to keep your health benefits while you're off work and whether you'll need to make premium payments during FMLA leave, and
  • discuss your right to return to your job at the end of your FMLA leave.

Guidelines for Employees Before and After FMLA Leave

You're required to provide timely notices and reports to your employer regarding your FMLA leave and return to work, including:

  • giving 30 days' notice that you need to take FMLA leave (if for a planned event like a planned surgery or childbirth)
  • giving as much notice as possible if your need for FMLA leave is unexpected (like an emergency medical procedure or sudden illness or injury)
  • providing enough information in your request for leave that your employer will be aware that your leave is likely to be covered by the FMLA
  • informing your employer right away if your need for FMLA leave changes while you're off work (for example, if your doctor determines that you can return to work earlier than expected)
  • providing any periodic updates that your employer requires regarding your recovery status and your intent to return to work, and
  • completing a" fitness-for-duty" certification, if your employer requires one, before returning to work (see below).

Fitness-for-Duty Certification

If you took medical leave for your own serious health condition, your employer could ask you to provide medical documentation that you're able to return to work. Your employer can ask for the following:

  • a "fitness-for-duty certification" (a written statement from your health care provider saying you can go back to work), and
  • an assessment of your ability to perform your job's essential functions by your health care provider (which addresses your ability to perform each of your job duties).

Your employer must notify you if you'll need a fitness-for-duty certification before returning to work after your FMLA leave. This information should appear in the written notice your employer gives you that says your time off qualifies for FMLA coverage.

If your fitness-for-duty certification must include an assessment of your ability to perform your essential job functions, your employer must also give you a list of those functions with this notice.

What If You're Unable to Return to Work After FMLA Leave?

The FMLA protects your job for up to 12 weeks of medical leave. After that, if you don't return to work, you might lose your job. But if you take FMLA leave because of a disability and you still can't do your job when your leave is over, you might have some protection under the Americans with Disabilities Act (ADA).

If the serious health condition that qualified you for FMLA leave fits the ADA definition of a disability, your employer might be required to provide "reasonable accommodations" that make it possible for you to do your job.

What If You Have Trouble Doing Your Job?

If you can't perform the essential functions of your position, your employer isn't required to reinstate you under the FMLA. But if a reasonable accommodation would allow you to perform those functions, your employer might have to provide it under the ADA.

For example, let's say you took FMLA leave from your job as a cashier to recover from injuries you suffered in a car accident. After 12 weeks off, you could go back to work, except that you still can't stand for more than an hour. If your employer allowed you to sit on a stool while you ring up customer purchases, that would be a reasonable accommodation.

Examples of Reasonable Accommodations Following FMLA Leave

There are lots of ways an employer can accommodate an employee with an ADA-protected condition. For instance, if you can't return to your former position, you might be entitled to a transfer to a different position.

Time off as a reasonable accommodation. Additional time off is a reasonable accommodation under the ADA—unless giving you that extra time off creates an undue hardship for your employer. Generally, employees aren't entitled to open-ended leave under the ADA. But if you need a set amount of additional leave and your employer can provide it without undue hardship, that might be a reasonable accommodation under the ADA.

Changes to your schedule. Adjustments to your work schedule—for instance, to accommodate medical treatments—or switching to part-time work (temporarily or long-term) can also qualify as reasonable accommodations under the ADA. But if your schedule changes create an undue hardship for your employer, the company doesn't have to grant the changes.

Read more about reasonable accommodations.

What Happens If You Choose Not to Return After FMLA Leave?

If you've recovered from your illness or injury, there can be financial repercussions for not returning to work after FMLA leave. If you decide not to go back to work after using FMLA leave, your employer can require you to pay back the portion of your health insurance premiums the company paid while you were on leave.

If you're able to work but choose not to return to your job, your employer can also require reimbursement for any other benefit premiums the company paid on your behalf while you were off work, including:

  • life insurance premiums
  • short-term disability insurance premiums, and
  • long-term disability insurance premiums.

But if you can't return to work due to your health, your employer isn't entitled to reimbursement, and you won't have to pay that money back.

What If Your Employer Won't Reinstate You After FMLA Leave?

Returning to work after an illness or short-term disability is your right under the FMLA. If your employer refuses to reinstate you or penalizes you in some other way for taking FMLA leave, you have the right to sue to be reinstated and recover damages (money) for your losses. Learn more about what you can win in an FMLA lawsuit.

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