Do employees have a right to reinstatement to their previous position upon return from Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA)leave? What are the exceptions to reinstatement under each law?

Employee reinstatement under FMLA

With some exceptions, the law requires that employers provide each qualified returning employee with the same position or with an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

Exceptions. An employer may deny or delay reinstatement under the following circumstances:

• Certification. If an employee fails to provide a medical fitness-for-duty certificate, when the employer has requested this certification before the commencement of the leave, and when the leave was taken for the employee’s own serious health condition.
• Termination of employment. If the employer can show the employee would not have remained employed if leave had not been taken.
• No intent to return. If an employee unequivocally advises the employer of his or her intent not to return to work.
• Fraud. If an employee fraudulently obtained leave.
• Policy violations. If an employee violates an employer’s uniformly applied policy governing supplemental employment while the employee is on leave.
• Key employee. An employer may deny reinstatement to certain key employees if the following conditions are met: (1) denying reinstatement is necessary to prevent substantial and grievous economic injury to the employer’s operations; (2) the employer notifies the employee of its intent to deny reinstatement at the time the employer determines that a substantial and grievous economic injury would occur; and (3) in any situation in which leave has started, the employee elects not to return to employment after receiving the notice referenced above.
  Note: This exception applies only to salaried employees who are among the highest-paid 10 percent of employees employed with the employer within 75 miles of the facility at which the employee works. Employees must be notified in writing of their status as key employees and the consequences with respect to reinstatement at the time the leave is requested. This exception is rarely used by employers.

Employee reinstatement under the ADA

Generally, an employee with a disability who is returning to work must be given the same position. If the employee’s former position is no longer available (e.g., holding the former position open would have posed an undue hardship on the employer), the employer must accommodate by placing the employee in a vacant position at a lower level, even if the pay is lower.

The employer is not required to promote the returning employee or “bump” another employee in order to make a position available.

This article is part of a series that compares and contrasts various aspects of the two laws.

Next article: Light duty assignments under both laws.