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When is An Employee Entitled to Job Restoration Under the FMLA

October 6, 1999
Related Topics: Employee Leave, Featured Article
Issue: You have an employee who has worked for at least 12 months, and in the 12 months prior to leave he worked more than 1,250 hours. Since, during his leave, he was hospitalized for inpatient treatment of depression and alcoholism, he satisfied the requirement that he had to have a serious health condition. Thus, his absences qualified as Family and Medical Leave Act (FMLA) leave.

Two doctors released the employee to return to work without any restrictions to prevent him from performing the essential functions of his job. Both doctors supplied the required information. The employee contacted you and asked that he be restored to the position he held when his leave began, but you deny his request. Did you violate the FMLA by failing to restore the employee to his former or an equivalent position?

Answer: Yes. The overall scheme of the FMLA is to protect an employee's job while he or she is on leave occasioned by a serious health condition, and to protect the employee's medical privacy by having the employer deal with the employee's own health care provider first. The right of job restoration is a substantive statutory right that is guaranteed to eligible employees by the FMLA-unless the employee is unable to perform an essential function of his/her position.

What you should know:

  1. In order for an employee to prove that he was entitled to recover on a job restoration claim, he must show that:
  • during his absences, he was eligible for FMLA leave;
  • he took a leave for the intended purpose of FMLA leave; and
  • he sought to be restore to his former or an equivalent position, and that the employer denied, restrained or interfered with his/her right to restoration.
  1. The right of restoration is a substantive statutory right guaranteed to eligible employees by the FMLA. As such, it cannot easily be diminished or taken away by a collective bargaining agreement. Congress specifically explained its intent behind the references to a CBA in the FMLA. The statute provides that nothing in the FMLA shall be construed to diminish the obligation of the employer to comply with any collective bargaining agreement ... that provides greater family and medical leave rights to employees than the rights established in the FMLA. Similarly, it states that the rights established in the FMLA shall not be diminished by any collective bargaining agreement or any employment benefit program.
  2. The FMLA regulations have articulated an exception to the reinstatement requirement, which is that if the employee is unable to perform an essential function of the job, then there is no right of restoration. An employer who raises this exception to an employee's substantive right has the burden of proving it.

Cite: Thomas A. Routes v. William Henderson, Postmaster of the United States Postal Service, (SD Ind 1999) 139 LC 33,934.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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