(a) On return from FMLA leave, an employee is entitled to be
returned to the same position the employee held when leave commenced, or
to an equivalent position with equivalent benefits, pay, and other terms
and conditions of employment. An employee is entitled to such
reinstatement even if the employee has been replaced or his or her
position has been restructured to accommodate the employee's absence.
See also Sec. 825.106(e) for the obligations of joint employers.
(b) If the employee is unable to perform an essential function of
the position because of a physical or mental condition, including the
continuation of a serious health condition, the employee has no right to
restoration to another position under the FMLA. However, the employer's
obligations may be governed by the Americans with Disabilities Act
(ADA). See Sec. 825.702.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
