Job Restoration
Upon return from leave, an employee must be reinstated into his or her previous position or re-assigned to an equivalent one "with equivalent benefits, pay, status, and other terms and conditions of employment." While you are not required to count time out on leave toward benefit accrual, reinstatement must include the continuation of all benefits that had been earned prior to the leave.
Reinstatement requirements cease after the 12 weeks are taken, whether continuous, intermittent, or part of a reduced schedule leave. Subsequent job restoration is at your discretion, even if a leave extension had been approved.
If, during an employee's leave, a layoff or other event occurs that would have changed or eliminated his or her job had leave not been taken, he or she has no greater rights than if employment had been continuous.
In the case of "key employees" - those among the top 10% income bracket of all staff - job restoration is not guaranteed. If the employer determines that it cannot reinstate a highly-compensated employee due to the "substantial and grievous economic injury" it would cause, that individual is entitled to all FMLA rights except job protection.
Other Points to Ponder
Many states have expanded the federal rules to include provisions for reduced eligibility requirements and greater leave time. These laws are based on the state in which the employee works (not lives), and prevail over federal FMLA requirements.
Some organizations opt to relax even the state-level requirements. For example, they might extend benefits to workers employed less than a year, allow maternity leaves of up to 16 weeks, or permit time off for the care of relatives other than those identified as "immediate family members" per FMLA guidelines. While such deviations may not offer the same level of job protection ensured by the FMLA, it is important to keep in mind that - if included in your company's policy manual or other written communications - the courts will probably rule in favor of the employee.
For more information on the FMLA, be sure to check out the Links page of this site.
