When you take time off work for your disability under the federal Family and Medical Leave Act (FMLA), you have the right to be reinstated (get your job back) when your leave is through. Below, we explain how this reinstatement right works, including timing, restoration of your benefits, and situations in which you may not be entitled to get your job back.
When you return from FMLA leave, you have the right to be reinstated to your former position or an "equivalent" position. An equivalent position is one that is nearly identical, in every important respect (including pay, benefits, job duties, work site, and other terms and conditions), to the position you held before taking leave.
You are entitled to be reinstated immediately upon your return to work, except that your employer can require you to give two days’ notice of your return date. As long as you provide this notice, your employer must put you back to work right away.
There are a few exceptions to employees' general rights to reinstatement. Your employer can refuse to give you your job back in any of the following cases:
When you get your job back, you are entitled to the same pay you received before you took leave. This includes your hourly wage or salary, as well as the same opportunities to earn additional pay that you had before your time off. For example, if you earned commissions, bonuses, or overtime before using the FMLA, you must have those same opportunities when you return.
In addition, you are entitled to any raises you would have received if you had not taken leave. For example, if your company gives employees an annual raise to help them keep up with the cost of living, you are entitled to the same raise, even if you were out on leave when it went into effect.
When you return to work after taking FMLA leave, you are entitled to have all of 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 are not entitled to return to the old plan, but to the new one you would have moved to if you had not taken leave.
One of the advantages of taking leave under the FMLA is the right to keep your health insurance: While you are on FMLA leave, you are entitled to continue your group health insurance benefits at the same cost as when you are working. Your employer must continue paying its usual share of the premium while you are off work, and you must pay your usual share, too (if any).
Not all employees choose to continue their health benefits while on leave, however. (And, your employer can cut off your benefits if you are more than 30 days late paying your share.) If your health benefits stop for any reason while you are on FMLA leave, your employer must restore them when you return to work. Your employer cannot require you to wait for open enrollment, take a physical, or otherwise requalify for any benefits.
If you took medical leave for your own serious health condition, your employer can ask you to provide medical documentation that you are able to return to work. This form, called a fitness for duty certification, is a written statement, signed by your health care provider, stating that you are able to resume work after your time off. Your employer can ask your health care provider to go over a list of your job’s essential functions and address your ability to perform those duties.
If your employer requires a fitness for duty certification, it must notify you. This information should appear in the designation notice your employer provides, indicating that your time off qualifies for FMLA coverage. If your employer will require your health care provider to address your ability to perform the job’s essential functions, it must give you a list of those functions along with this notice.
If you use up your FMLA leave and are still unable to do your job, you may have rights under the Americans with Disabilities Act (ADA). As long as the serious health condition for which you took FMLA leave qualifies as a disability under the ADA, your employer may have to provide you with a reasonable accommodation so that you can do your job. For example, even if you have used up your 12 weeks of FMLA leave, you may be entitled to more time off as an accommodation, unless it creates undue hardship for your employer. Generally, employees are not 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 may be a reasonable accommodation under the ADA.
If you cannot 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 may have to provide it under the ADA. And, even if you can’t return to your former position, you may be entitled to a transfer to a different position.
If your employer refuses to reinstate you, you have the right to sue to be reinstated and/or get money damages. For more information, see our article on what you can win in an FMLA case.