Return to Work

Return to Work

You have certain obligations when an employee returns to work after taking family and medical leave. When you grant an employee’s leave request, you must guarantee to reinstate the employee to the same or comparable position. Put the guarantee in writing if the employee requests. Only under very limited circumstances can you refuse to honor the guarantee of reinstatement. Specific requirements apply to employees returning to work from PDL leave. If you and the employee agree on a definite date of reinstatement at the beginning of the leave, you must reinstate the employee by or on that date. If the reinstatement date differs from your original agreement with the employee, you must reinstate the employee within two business days after the employee notifies you of his/her readiness to return.

Requiring a Medical Release to Return from Leave. You can require that an employee who has been on leave for his/her own serious health condition obtain a release to return to work, but only if you have a uniformly applied practice of requiring such releases from other employees returning to work after illness, injury or disability. The release should be completed by the employee’s health care provider before the employee is back at work.

A FMLA CFRA Designation Notice form can be used to advise the employee that such a release will be required. You should include a list of the essential functions of the employee’s job with the designation notice, at the time the notice is given to the employee. Be sure to include any consequences to the employee if he/she does not obtain a release to return to work.

A Certification of Health Care Provider for Employee Return to Work form also can be used by the employee’s health care provider to release the employee to return to work. Be sure to include a list of the essential functions of the employee’s job if you have not previously provided it to the employee.

The employee is entitled to reinstatement upon certification from his/her health care provider that the employee is able to return to work. The employer is not entitled to seek a second opinion regarding the certification prior to reinstating the employee. However, once the employee is reinstated, the employer may require a fitness for duty exam consistent with the Americans with Disabilities Act, as long as the exam is job related and consistent with business necessity.

In White v. County of Los Angeles, a California Court of Appeal allowed an employer to conduct a post-reinstatement fitness-for-duty exam of a peace officer who exhibited erratic behavior at work prior to taking FMLA leave for mental health issues. The case involved a senior investigator with the Los Angeles County District Attorney’s Office, Susan White; a peace officer with authorization to carry a weapon. She began behaving erratically at work and showed signs of instability and poor judgment. She took 12 weeks of FMLA and additional approved unpaid leave.
White’s doctor wrote a letter clearing her to return to work. The county reinstated her but then requested that she undergo a fitness-for-duty exam. The court ruled that an employer may restore an employee to work and then seek its own evaluation of the employee’s fitness for duty if that exam is:

At the employer’s own expense; and
Job related and consistent with business necessity in compliance with the Americans with Disabilities Act (ADA).

California’s disability regulations also allow an employer to conduct fitness-for-duty exams of current employees that are both job related and consistent with business necessity.

Seniority and Family and Medical Leave. An employee returning from leave must have at least as much seniority as he/she had at the time of starting the leave, for purposes of layoff, recall, promotion, job assignment and seniority-related benefits such as vacation. The employee retains his/her status and you must reinstate him/her to any benefits previously provided without any new qualification period, physical exams, etc.
During family and medical leave, the employee is entitled to accrual of seniority to the same extent and under the same conditions as would apply to any other non-family leave you grant:

For unpaid leaves: Treat an unpaid leave for an employee’s serious health condition, the care of a family member or for baby bonding like other unpaid disability leaves.
For paid leaves: If company policy allows seniority to accrue when employees are out on paid leave, such as paid sick or vacation leave, then seniority accrues during any part of a paid family and medical leave.

No Right to Reinstatement Under CFRA for Leave Exceeding 12 Weeks. A California court has ruled that an employer did not violate an employee’s rights under the California Family Rights Act (CFRA) when it refused to reinstate an employee who tried to return to work after 12 weeks of medical leave had expired. The decision aligns California law under CFRA with decisions by federal courts under the Family and Medical Leave Act (FMLA). However, recent amendments to California regulations may require employers to extend FMLA or CFRA leave for an employee with a disability.

Returning from Medical Leave to a Comparable Position. Employment in a “comparable position” means employment in a position virtually identical to the employee’s original position in terms of pay, benefits and working conditions, including privileges, fringe benefits and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. It must be performed at the same or a geographically close worksite from where the employee previously was employed. It ordinarily means the same shift or the same or an equivalent work schedule.

Right to Re-employment After Family and Medical Leave. As with other types of legally-mandated leaves of absence, the employee on FMLA/CFRA leave has no greater right to re-employment than he/she would have if not taking the FMLA/CFRA leave. When an employee is released to return to work, he/she returns to the job held before his/her leave unless he/she is no longer able to perform that job. If an employee is unable to return to work after FMLA/CFRA because of his/her own disability, you may have to consider an extension of leave as a form of reasonable accommodation for the disability. If the employee’s inability to return is for a reason other than his/her own disability, you are obligated to provide additional leave only if your policy permits leave.

Requesting a Different Job or a Different Schedule. You are required only to return an employee to the same or a comparable position. Treat an employee’s request to return to work on a part-time schedule or to take a different, available position the same as any other employee’s request for a change in hours or positions. No special consideration for the request is necessary because of the employee’s return from FMLA/CFRA leave. Example: An employee returning from leave to care for an ill or injured service member requests a reduction in hours to spend more time with his family for a reason unrelated to the original leave. The employer should review this request in the same manner as a request from any other employee — determine the feasibility of complying with the request in relation to business needs and policies and practices. In addition, the decision should be made in the context of how future requests will be reviewed because complying with one employee’s request sets a precedent for future decisions.

Both the FMLA and the CFRA prohibit discrimination or retaliation against an employee for exercising his/her rights created by the laws. You cannot retaliate against an employee for taking family and medical leave or for giving information or testimony about leave. A supervisor may be held liable for retaliating against an employee where denial of a promotion or a recommendation for termination is attributable to the employee’s exercise of FMLA-protected rights.

Several courts ruled that these protections extend to past and prospective employees as well. Refusal to rehire a former employee because he/she previously took leave under the FMLA may violate the law.

Health Insurance Cost Recovery. You can recover the cost of group health insurance premium payments made during any unpaid part of a family and medical leave if the employee:

Fails to return from leave when his/her leave entitlement has expired
Or returns from leave but fails to work 30 calendar days after returning

However, if the reason for the failure to return is either beyond the control of the employee or because of a serious health condition starting, continuing or recurring, you cannot recover your costs. Under California law, an employer can recover the premium that it paid for maintaining group health care coverage during any unpaid part of the CFRA leave if both of the following conditions occur:

The employee fails to return from leave after the period of leave to which the employee is entitled has expired. An employee is deemed to have “failed to return from leave” if he/she works less than 30 days after returning from CFRA leave.
The employee’s failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to CFRA leave, or other circumstances beyond the control of the employee.

COBRA Qualifying Events and Family and Medical Leave. Taking family and medical leave is not a qualifying event for Consolidated Omnibus Budget Reconciliation Act (COBRA) purposes. However, an employee who does not return from such leave within available time limits or returns on a reduced schedule may be entitled to COBRA if eligibility for health benefits ceases.

Refusing Reinstatement After Family and Medical Leave. Though an employee has the right to return to the position held before taking a family and medical leave, this right is not absolute. If you can show a lawful reason for not restoring an employee to his/her position, such as the employee violating company policy, you can legally terminate the employee. The reason must be unrelated to the employee’s exercise of family and medical leave rights.

Under FMLA regulations, an employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefit provisions. In addition, if the employer maintains a uniformly applied policy governing outside or supplemental employment, this policy can continue to apply to an employee while on FMLA leave.

In Sista v. CDC Ixis North America, Inc., the Second Circuit Court of Appeals found a termination lawful because it was the result of threats to other employees and not because of the employee’s exercise of rights under the FMLA. If an employer terminates an employee for a legitimate, nondiscriminatory reason, the employer does not violate the FMLA.

You can refuse to reinstate an employee under the following additional circumstances:

Key employee: You must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he/she qualifies as a key employee, defined as:

A salaried employee.
An employee among the highest paid 10 percent of your workforce within 75 miles of the employee’s worksite.

To deny reinstatement, you must show that:

The refusal is necessary because the employee’s reinstatement causes substantial and grievous economic injury to your operations.
You notify the employee of your intent to refuse reinstatement when you determine the refusal is necessary due to economic injury to the business.
If the leave already started, you must give the employee a reasonable opportunity to return to work following the notice of intent to deny reinstatement.

All employees: Your responsibility to continue family leave ceases only if you can prove that an employee would have been laid off or terminated regardless of being on family and medical leave.

Employee Layoffs During Family and Medical Leave. An employee who takes family and medical leave can be refused reinstatement for reasons unrelated to the leave, such as misconduct or an organization layoff due to lack of work. Consider consulting legal counsel before taking action. If an employee is laid off during family and medical leave and employment is discontinued, your responsibility to continue the leave, maintain group health plan benefits and reinstate the employee ceases, if you do not bear any continuing obligations under a collective bargaining agreement or otherwise. Proving that an employee would have been laid off regardless of whether he/she was on family and medical leave is difficult. The following scenarios would not constitute a sufficient defense to an employer’s refusal to reinstate an employee after family and medical leave:

You distribute the duties of an employee on family and medical leave to several other employees and find that they can handle the additional work.
You hire a temporary employee to do the duties of the employee on family and medical leave and find that the temporary employee does a better job.
You find it necessary to lay off one person from the department and because the employee on family and medical leave was already out of the workplace, you select him/her for the layoff.
You hear through others (or even the employee on leave) that the employee is considering not returning to work at the end of the leave.

You can justify refusing to reinstate an employee if you can prove that you would have laid off the employee regardless of whether he/she was on FMLA/CFRA. This can be difficult to prove unless you have documented proof that you would have laid off the employee based on:

Seniority (for example, everyone with less than four years’ seniority was laid off)
Position (for example, everyone in this same job was laid off)
Department (for example, everyone in this department was laid off)
Other nondiscriminatory factors (such as documented performance issues)

Terminating Employees During Family and Medical Leave. Employees who abuse the leave of absence may be subject to disciplinary action, up to and including termination. For instance, if an employee requests five days of FMLA/CFRA leave to care for a parent who is recovering from surgery, but the employee is seen engaging in other activities that would prevent him/her from caring for the ill parent, you may have a reason to terminate the employee. However, if the employee requested FMLA/CFRA leave to care for a child in the hospital but was actually at home caring for other children while his/her spouse was at the hospital with the ill child, you would probably not have sufficient reason to terminate the employee. The fact that the employee is entitled to leave and could have cared for the ill child in the hospital is enough to provide the employee protection under FMLA.

You cannot interfere with an employee’s FMLA/CFRA leave rights. You cannot retaliate against an employee who takes family and medical leave. It is important to document any disciplinary or termination action taken against an employee using or returning from family and medical leave. For example, an employee returns from FMLA and the employer receives numerous complaints from co-workers, supervisors and customers. The employer decides to place the employee on a performance improvement plan. If the plan is based on work-related issues, deficiencies or problems, the employee would find it difficult to claim retaliation for using FMLA.

Not everything that makes an employee unhappy can be used to bring a retaliation claim against an employer. The action taken has to do more than give an employee a chance to improve — it must discourage an employee from taking FMLA.