(a) If an employee fails to give timely advance notice when the need
for FMLA leave is foreseeable, the employer may delay the taking of FMLA
leave until 30 days after the date the employee provides notice to the
employer of the need for FMLA leave. (See Sec. 825.302.)
(b) If an employee fails to provide in a timely manner a requested
medical certification to substantiate the need for FMLA leave due to a
serious health condition, an employer may delay continuation of FMLA
leave until an employee submits the certificate. (See Secs. 825.305 and
825.311.) If the employee never produces the certification, the leave is
not FMLA leave.
(c) If an employee fails to provide a requested fitness-for-duty
certification to return to work, an employer may delay restoration until
the employee submits the certificate. (See Secs. 825.310 and 825.311.)
(d) 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. Thus, an employee's
rights to continued leave, maintenance of health benefits, and
restoration cease under FMLA if and when the employment relationship
terminates (e.g., layoff), unless that relationship continues, for
example, by the employee remaining on paid FMLA leave. If the employee
is recalled or otherwise re-employed, an eligible employee is
immediately entitled to further FMLA leave for an FMLA-qualifying
reason. An employer must be able to show, when an employee requests
restoration, that the employee would not otherwise have been employed if
leave had not been taken in order to deny restoration to employment.
(See Sec. 825.216.)
(e) An employer may require an employee on FMLA leave to report
periodically on the employee's status and intention to return to work.
(See Sec. 825.309.) If an employee unequivocally advises the employer
either before or during the taking of leave that the employee does not
intend to return to work, and the employment relationship is terminated,
the employee's entitlement to continued leave, maintenance of health
benefits, and restoration ceases unless the employment relationship
continues, for example, by the employee remaining on paid leave. An
employee may not be required to take more leave than necessary to
address the circumstances for which leave was taken. If the employee is
able to return to work earlier than anticipated, the employee shall
provide the employer two business days notice where feasible; the
employer is required to restore the employee once such notice is given,
or where such prior notice was not feasible.
(f) An employer may deny restoration to employment, but not the
taking of FMLA leave and the maintenance of health benefits, to an
eligible employee only under the terms of the ``key employee''
exemption. Denial of reinstatement must be necessary to prevent
``substantial and grievous economic injury'' to the employer's
operations. The employer must notify the employee of the employee's
status as a ``key employee'' and of the employer's intent to deny
reinstatement on that basis when the employer makes these
determinations. If leave has started, the employee must be given a
reasonable opportunity to return to work after being so notified. (See
Sec. 825.219.)
(g) An employee who fraudulently obtains FMLA leave from an employer
is not protected by FMLA's job restoration or maintenance of health
benefits provisions.
(h) If the employer has a uniformly-applied policy governing outside
or supplemental employment, such a policy may continue to apply to an
employee while on FMLA leave. An employer which does not have such a
policy may not deny benefits to which an employee is entitled under FMLA
on this basis unless the FMLA leave was fraudulently obtained as in
paragraph (g) of this section.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
