(a) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. An employer must be
able to show that an employee would not otherwise have been employed at
the time reinstatement is requested in order to deny restoration to
employment. For example:
(1) If an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer's responsibility to
continue FMLA leave, maintain group health plan benefits and restore the
employee cease at the time the employee is laid off, provided the
employer has no continuing obligations under a collective bargaining
agreement or otherwise. An employer would have the burden of proving
that an employee would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration.
(2) If a shift has been eliminated, or overtime has been decreased,
an employee would not be entitled to return to work that shift or the
original overtime hours upon restoration. However, if a position on, for
example, a night shift has been filled by another employee, the employee
is entitled to return to the same shift on which employed before taking
FMLA leave.
(b) If an employee was hired for a specific term or only to perform
work on a discrete project, the employer has no obligation to restore
the employee if the employment term or project is over and the employer
would not otherwise have continued to employ the employee. On the other
hand, if an employee was hired to perform work on a contract, and after
that contract period the contract was awarded to another contractor, the
successor contractor may be required to restore the employee if it is a
successor employer. See Sec. 825.107.
(c) In addition to the circumstances explained above, an employer
may deny job restoration to salaried eligible employees (``key
employees,'' as defined in paragraph (c) of Sec. 825.217) if such denial
is necessary to prevent substantial and grievous economic injury to the
operations of the employer; or may delay restoration to an employee who
fails to provide a fitness for duty certificate to return to work under
the conditions described in Sec. 825.310.
(d) If the employee has been on a workers' compensation absence
during which FMLA leave has been taken concurrently, and after 12 weeks
of FMLA leave the employee is unable to return to work, the employee no
longer has the protections of FMLA and must look to the workers'
compensation statute or ADA for any relief or protections.
