What are my rights when returning to work under the FMLA?

The Family and Medical Leave Act is an important part of employment law. There are numerous issues that are dealt with under the FMLA, including when the person who took the allowed time under the law decides to return to work. There are times when people try to get back to work after utilizing FMLA and find themselves marginalized, transferred or face some other unexpected change that might be a violation of labor law. If this does happen, it could be the basis of employment litigation.

When returning to work after using FMLA, the employer is required to return the employee to the same job that he or she left, or one that is nearly identical. The employer can move the employee to another job, but there are certain criteria that must be met including: the same or similar status, duties and responsibility; the same amount of authority, skill and effort to complete it; identical pay as before with overtime, bonuses and equivalent premium pay; identical benefits; and the same basic work schedule at the same or a nearby location.

People who use all their FMLA time and cannot get back to work as soon as it is completed are not guaranteed to have their job returned to them. This is not against the law. There are exceptions under the FMLA for certain employees known as "key" employees. Reinstatement is not guaranteed. A key employee must be eligible for FMLA, receive a salary and be one of the highest compensated 10 percent at the workplace and any other workplace owed by the business within 75 miles. Teachers have special rules that apply for intermittent leave or when leave is needed close to the end of the school year.

Some employers might try to avoid giving benefits to employees or take steps to dissuade employees from using their benefits. Unions should be aware of these tactics and take steps to put a stop to it. Getting more information about your employee rights under the FMLA can help.

Source: dol.gov, "The Employee's Guide to the Family and Medical Leave Act -- Returning to Work, page 14," accessed on Aug. 22, 2017

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