While the FMLA normally requires an eligible employee be reinstated to an equivalent position at the end of his FMLA leave, the employee has no greater right to reinstatement than if the employee had been continually employed. Thus, there are several situations where an employee is not entitled to reinstatement.
First, where an employer conducts a layoff or reduction in force while the employee is on FMLA and would have been laid off had the employee not been on leave, the employer’s obligation to reinstatement and continuation of benefits ends on the date of termination.
Second, employees hired for specific project or for a specified term, have no right to reinstatement after the termination of the project or specified term.
Third, employees who have obtained leave fraudulently have no right to reinstatement.
Fourth, employees who are unable to perform the essential functions of the position of employment at the end of leave are not entitled to reinstatement. To avoid an ADA claim, the employee must only be denied employment if he or she cannot perform the essential functions of the position with or without reasonable accommodation.
Finally, employer’s may deny reinstatement to salaried, eligible key employees when the denial of reinstatement (not leave itself) is necessary to prevent substantial and grievous economic injury to the operations of the employer. Key employees are those salaried employees who are among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee’s worksite. Substantial and grievous economic injury sufficient to warrant denial of reinstatement to a key employee includes those situations where reinstatement would jeopardize the viability of the company itself. Minor inconveniences and costs the employer would otherwise experience in the normal course of business, however, would not qualify. Keep in mind that the employer must provide "key employees" with certain disclosures at the time the employee gives notice of the need for leave to be able to deny reinstatement.
While an employee’s use of FMLA leave will normally entitled the employee to reinstatement to an equivalent position, keep these exceptions to the general rule in mind when managing leave programs.
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