QUERY: Are there any circumstances under which we do not have to reinstate an employee who has been on FMLA leave?

RESPONSE: The following material is found in Ceridian's HR Compliance Reference System:

The FMLA does not require an employer to reinstate an employee on FMLA leave in certain circumstances. These are:

• If the employee can no longer perform an essential function of his or her job due to a physical or mental condition. Employers must then consider the employee’s rights and his or her own obligations under the Americans with Disabilities Act (ADA) or state law.
   
• If the employer can show the employee would not have been employed at the time reinstatement is requested. The U.S. Department of Labor provides several examples of when reinstatement is not required:

·         If the employer would have laid off the employee during the FMLA leave period, the employee would not be entitled to reinstatement if he or she still would have been laid off at the time reinstatement is sought.

·         If an employer eliminates a shift, the employee would not be entitled to return to work that shift. If the shift, however, still exists and the position is only being filled by another employee, the employer must restore the original employee to the shift.

·         If an employer hired an employee for a specific term or to perform a specific project, the employer has no obligation to reinstate the employee if the term or project has been completed and the employer would not have otherwise continued to employ the employee.

·         If an employee has been on workers’ compensation leave during which he or she took FMLA leave concurrently and is unable to return to work after the 12 weeks of FMLA leave has expired, the employee loses the protection and benefits of FMLA. The employer still must consider its obligations under workers’ compensation law and the Americans with Disabilities Act.

• If an employee gives unequivocal notice that he or she will not return to work following FMLA leave.
   
• If an employer advises an employee who takes leave for his or her own serious health condition that the employer requires a medical certification for fitness for duty to return to work and the employee fails to provide the certification. An employer may delay reinstatement until the employee produces the certificate.
   
• If the employee qualifies as a “key employee,” an employer need not reinstate that employee if reinstatement would create substantial and grievous economic injury.
   
• If the employee fraudulently obtains FMLA leave.