Rules For FMLA Job Restoration

The Basic FMLA Job Restoration Right

Under 29 CFR 825.214, an employee returning from FMLA leave is entitled to be returned to the same position held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. The right applies even if the employee has been replaced or the position has been restructured to cover the absence.

The right applies to continuous leave and to leave taken intermittently or on a reduced schedule. An employee who was temporarily transferred to an alternative position during intermittent leave must be placed back in the same or an equivalent job when the need for leave ends. In joint employment, such as a staffing agency placement, restoration is primarily the responsibility of the primary employer.

What Counts as an Equivalent Position

An equivalent position is one that is "virtually identical" to the former position in pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, with substantially equivalent skill, effort, responsibility, and authority.

Two refinements matter in practice. The requirement does not extend to trivial, intangible, or unmeasurable aspects of the job. And an employer may agree to an employee’s own request for a different shift, schedule, or position, or offer a promotion, but may not induce the employee to accept a different position against his or her wishes.

For how coverage and premiums are handled during and after leave, see FMLA benefits maintenance.

When Restoration Has to Happen

The right arises on the employee’s return from leave. The regulations do not give employers a grace period to finish paperwork or to pick a start date that suits the department.

• Changed dates. If the employee needs more or less leave than expected, the employer may require reasonable notice of the change (within two business days, where foreseeable). An employee cannot be made to take more leave than necessary.
• Unequivocal notice of not returning. If the employee gives unequivocal notice of intent not to return, the duties to maintain health benefits and to restore end. They continue if the employee says he or she may be unable to return but still wants to.
• Fitness for duty. Restoration may be delayed until a required fitness-for-duty certification is provided, but only if the employer has a uniformly applied policy and gave notice of the requirement with the designation notice. See fitness-for-duty certification requirements and the designation notice: deadlines and common errors.
• Light duty. An employee who voluntarily accepts a light-duty assignment while recovering keeps the right to be restored to the original or an equivalent position, but that right ends at the close of the 12-month FMLA leave year.

Limits on the Right to Reinstatement

Every limit in 29 CFR 825.216 comes from one principle: an employee has no greater right to reinstatement, or to other benefits and conditions of employment, than if he or she had been continuously employed during the leave. Leave protects the job from the leave. It does not protect it from events that would have happened anyway.

The employer carries the burden. It must be able to show that the employee would not otherwise have been employed when reinstatement is requested. The Ninth Circuit applied that rule in Sanders v. City of Newport (2011), holding that the burden of proving a legitimate reason to deny reinstatement rests on the employer. The opinion notes that the circuits have not all allocated this burden the same way, so confirm the rule where you operate.

1. Layoff or position elimination. If the employee would have been laid off during the leave, the duties to continue leave, maintain health benefits, and restore end at that point, unless a collective bargaining agreement or other obligation says otherwise.
2. Eliminated shift or reduced overtime. The employee is not entitled to a shift or overtime that no longer exists for anyone. A shift that was simply filled by someone else is different: the employee is entitled to return to it.
3. Fixed term or discrete project. No restoration is owed if the term or project has ended and the employer would not otherwise have kept the employee on.
4. Key employees. A narrow exception, covered in full below.
5. Inability to perform an essential function. If the employee cannot perform an essential function of the position because of a physical or mental condition, including the continuation of the serious health condition, there is no FMLA right to be restored to another position. The ADA, state leave laws, or workers’ compensation laws may still impose duties.
6. No fitness-for-duty certification. Where the notice requirements were met, an employee who neither provides the certification nor requests more FMLA leave is no longer entitled to reinstatement.
7. Fraud. An employee who fraudulently obtains FMLA leave is not protected by the restoration or health benefit provisions. See FMLA abuse and how employers may respond for how to establish that properly.
8. Outside employment. A uniformly applied policy on outside or supplemental employment may continue to apply during leave. An employer without such a policy may not deny restoration on that basis unless the leave was fraudulently obtained.

A layoff or elimination defense rests on evidence: a business reason that predates or is independent of the leave, selection criteria applied to everyone affected, and decision-makers whose reasoning is on record.

What is not an exception:

• A replacement who performs well
• A job that was restructured during the absence so that it is now "different"
• A delay to suit the department’s calendar
• Performance concerns first raised after the leave request, with no earlier record

When the Employee Cannot Return: Where the ADA Takes Over

Limit five ends the FMLA analysis and often starts another. An employee who cannot do the job when leave ends may be entitled under the ADA to a reasonable accommodation, which can include more leave, a modified schedule, or reassignment to a vacant position. The EEOC’s position is that complying with the FMLA does not necessarily meet an employer’s ADA obligation.

Do not end employment automatically on the day FMLA leave runs out, and do not require a return with no restrictions. See transitioning from FMLA leave to ADA accommodation, restoration and reasonable accommodation under current leave laws, and "100% healed" and maximum-leave policies.

Where leave is both FMLA leave and an ADA accommodation, the FMLA regulations say the employee gets the greater right under each law, which can mean reinstatement to the same job under the ADA, not merely an equivalent one.

The Key Employee Exception

The key employee exception lets an employer deny restoration, but never the leave itself, to certain highly paid employees when restoring them would cause substantial and grievous economic injury to the employer’s operations. It is rarely usable, and an employer that misses a notice step loses it.

Who Is a Key Employee (29 CFR 825.217)

A key employee is a salaried, FMLA-eligible employee who is among the highest-paid 10 percent of all employees the employer has within 75 miles of the employee’s worksite.

• Salaried means paid on a salary basis under the FLSA regulations at 29 CFR 541.602. The comparison group is all employees within 75 miles: salaried and hourly, eligible and not.
• Pay is compared by dividing year-to-date earnings by weeks worked, including weeks of paid leave. Earnings include wages, premium pay, incentive pay, and bonuses, but not stock options, benefits, or perquisites.
• Timing: The determination is made when the employee gives notice of the need for leave.
• No more than 10 percent of the employees within 75 miles can be key employees.

The Standard (29 CFR 825.218)

The question is whether restoring the employee will cause substantial and grievous economic injury, not whether the employee’s absence will. An employer may take into account whether it can replace the employee temporarily or do without. If a permanent replacement was unavoidable, the cost of then reinstating the employee can be considered.

A threat to the firm’s economic viability qualifies, and so does a lesser injury that causes substantial, long-term economic harm. Minor inconveniences and ordinary business costs do not. The standard is more stringent than undue hardship under the ADA.

The Notice Steps (29 CFR 825.219)

Miss Step 1 and the exception is gone: an employer that fails to give timely notice loses the right to deny restoration even if the injury is real. The DOL’s optional Form WH-381 includes a key employee statement for this purpose. Check the DOL forms page for the current form and wording. For the timing of the notices themselves, see employer notice duties and deadlines.

Sample Step 2 Notice (Example Only)

This is an illustration with fictional names, to be delivered in person or by certified mail. Have counsel review any notice before it is used. For Step 1, the key employee statement on Form WH-381 is the usual vehicle.

Dear Ms. Example: Northfield Supply has determined in good faith that restoring you to your position, or an equivalent one, at the end of your FMLA leave will cause substantial and grievous economic injury to our operations. The basis for this determination is: [specific facts, such as the permanent replacement that had to be hired and the cost of reinstatement]. We cannot and do not deny your FMLA leave. We intend to deny restoration when your leave ends. If you wish to return to work now, you must do so by [date that allows a reasonable time]. If you remain on leave, your health benefits will continue, and you may still request reinstatement when your leave ends, at which point we will review the facts again and respond in writing.

Restoration Checklist

1. Confirm the return date with the employee ahead of time.
2. Confirm the original position, shift, worksite, and pay, including any raises given during leave.
3. If the original job is unavailable, document why and test the proposed position against each row of the equivalency table.
4. Reinstate benefits with no waiting period or requalification.
5. If the employee cannot return, open the ADA interactive process before any employment decision.
6. If restoration will be denied, have HR review the evidence that the decision is independent of the leave, and keep the file for at least three years.

The FMLA Compliance Checklist covers the earlier stages. Restoration decisions that involve the ADA, workers’ compensation, or USERRA at the same time are a core topic of the two-day Leave and Accommodation Management seminar.

Frequently Asked Questions

The Bottom Line

FMLA job restoration is the rule, and the exceptions are narrow and belong to the employer to prove. Return the employee to the same job where you can, and test any alternative against the regulation element by element. Follow the key employee steps exactly or do not use the exception, and when an employee cannot return, look at the ADA before any termination.

For the rest of the process, see FMLA requirements for employers. To practice return-to-work decisions across the FMLA, ADA, workers’ compensation, and USERRA, see the Leave and Accommodation Management seminar. This article is general education, not legal advice.