July 31, 2025

QUESTION:
What are some general guidelines for reinstating an employee from FMLA leave?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA
The Family Medical Leave Act (“FMLA”) generally requires an employer to restore an employee to the same job to an “equivalent” job the employee had when they took their FMLA leave.  An “equivalent job” is a job that is virtually identical to the original job in terms of pay, benefits, shifts, conditions, and other terms and conditions of employment.  An employee is entitled to any unconditional pay increases, including unconditional bonuses, which occurred while on FMLA leave, as well as conditional pay increases conditioned on seniority or length of service if employees taking the same type of leave for non-FMLA reasons would receive such increases.  Notably, if a bonus is conditioned on achieving a specific goal and the employee does not meet the goal due to FMLA leave, the employer need not pay the bonus unless the employer pays said bonus to employees taking the same type of leave for a non-FMLA reason.  Additionally, any benefits the employee accrues prior to taking FMLA leave must be available to the employee when they return from leave.

Conversely, if the employer takes an action on the employee’s position that would have affected the employee whether or not they were on FMLA leave, the employee on FMLA leave is not protected from said action.  For example, if an employer eliminates a shift or decreases overtime, the employee returning from FMLA leave would not be entitled to return to the eliminated shift or original overtime hours.  If the employer lays off the employee during FMLA leave, the employer must be able to show that the employee would have been laid off during the FMLA leave period, regardless of whether the employee would have been on leave.  An employer may also decide not to restore a “key employee,” who is defined under the FMLA as a salaried FMLA-eligible employee who is among the highest paid 10% of all employees within 75 miles of the worksite.

If the employee fails to return to work after FMLA leave expires, the employer may recover from the employee its share of health plan premiums paid during the employee’s unpaid FMLA leave unless the reason the employee cannot return to work is due to (1) the continuation, recurrence, or onset of a serious health condition of the employee or their family member (or a serious injury or illness of a covered service member that would otherwise entitle the employee to FMLA leave) or (2) other circumstances beyond the employee’s control. Such “circumstances beyond the employee’s control” include situations such as where a parent chooses to stay home with a newborn child who has a serious health condition; the employee is laid off while on leave; or the employee’s relative or another individual has a serious health condition, and the employee needs to provide that person with care.  The employer may thereafter require the employee to provide supporting medical certification to confirm said continuation, recurrence, or consent of the serious health condition.  If the employee does not provide the supporting medical certification within a timely manner (typically 30 days of the request), the employer may recover the health benefits premiums paid.

Employers should be aware of other federal laws that may apply in addition to the FMLA, including the American with Disabilities Act and the Pregnancy Discrimination Act, as well as state-specific laws.  For example, if an employee on FMLA leave is a “qualified individual” with a “disability” within the meaning of the ADA, the ADA requires their employer to make reasonable accommodations absent undue hardship.

If you have a quick question about this, e-mail mtonocbonilla@hortyspringer.com.