(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. Restoration to a
job slated for lay-off when the employee's original position is not
would not meet the requirements of an equivalent position.
(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.
(3) 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.
(b) In addition to the circumstances explained above, an employer
may deny job restoration to salaried eligible employees ("key
employees," as defined in Sec. 825.217(c)), 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. 825.312.
(c) 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 or an injury or illness also
covered by workers' compensation, the employee has no right to
restoration to another position under the FMLA. The employer's
obligations may, however, be governed by the Americans with
Disabilities Act (ADA), as amended. See Sec. 825.702, state leave
laws, or workers' compensation laws.
(d) An employee who fraudulently obtains FMLA leave from an
employer is not protected by FMLA's job restoration or maintenance of
health benefits provisions.
(e) 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 (d) of this section.
[73 FR 68094, Nov. 17, 2008]
