Reinstatement rights under FMLA

At the conclusion of leave under Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA), an employer must reinstate an employee to the same or an equivalent job, unless he or she is a “key employee” who is given appropriate notification. One main limitation on this rules is that the employee returning to work is not entitled to reinstatement if unable to perform an essential function of the position because of physical or mental condition, including the continuation of a serious health condition.

In order to be deem equivalent, the alternate position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities. In one case, a nurse who formerly worked a day shift was offered a full-time night shift position with the same duties and benefits, or a part-time day position with reduced benefits. As a matter of law, that offer was not an offer of an equivalent position. Hunt v. Rapides Healthcare System LLC (2001). An employee returning after FMLA leave may not be disqualified from bonuses which are not related to performance, but need not be credited with time spent on FMLA leave when the bonus is based on employee’s total performance or production.

If a salaried employee is deemed a “key employee” and reinstatment would result in substantial and griveous economic injury to an employer, the employer may deny reinstatement after propery notifing the employe and affording that employee an opportunity to forgo the leave or return from leave. 29 USC 2614(b)(2).

A key employee is a salaried employee who is one of the highest paid 10% of all employees within 75 miles of the employee’s worksite. The determination of “key employee” status is made at the time an employee gives notice of the need to leave. 29 CFR 825.217(c)(2).

Reinstatement of a key employee may be denied if the return to the position (not the absence) would result in “substantial and grievous economic injury” to the operations of the mployer. However, an employer must give writen notice to the employee of his “key employee” status and the potential consequences of reinstatement rights. An employer who does not give timely notice to a “key employee” loses the right to deny reinstatement even if substantial and grievous economic injury will result. 29 CFR 825.219(a).