[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR825.216]

[Page 777]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents
 
 Subpart B_What Leave Is an Employee Entitled to Take Under the Family 
                         and Medical Leave Act?
 
Sec. 825.216  Are there any limitations on an employer's obligation 
to reinstate an employee?

    (a) An employee has no greater right to reinstatement or to other 
benefits and conditions of employment than if the employee had been 
continuously employed during the FMLA leave period. An employer must be 
able to show that an employee would not otherwise have been employed at 
the time reinstatement is requested in order to deny restoration to 
employment. For example:
    (1) If an employee is laid off during the course of taking FMLA 
leave and employment is terminated, the employer's responsibility to 
continue FMLA leave, maintain group health plan benefits and restore the 
employee cease at the time the employee is laid off, provided the 
employer has no continuing obligations under a collective bargaining 
agreement or otherwise. An employer would have the burden of proving 
that an employee would have been laid off during the FMLA leave period 
and, therefore, would not be entitled to restoration.
    (2) If a shift has been eliminated, or overtime has been decreased, 
an employee would not be entitled to return to work that shift or the 
original overtime hours upon restoration. However, if a position on, for 
example, a night shift has been filled by another employee, the employee 
is entitled to return to the same shift on which employed before taking 
FMLA leave.
    (b) If an employee was hired for a specific term or only to perform 
work on a discrete project, the employer has no obligation to restore 
the employee if the employment term or project is over and the employer 
would not otherwise have continued to employ the employee. On the other 
hand, if an employee was hired to perform work on a contract, and after 
that contract period the contract was awarded to another contractor, the 
successor contractor may be required to restore the employee if it is a 
successor employer. See Sec. 825.107.
    (c) In addition to the circumstances explained above, an employer 
may deny job restoration to salaried eligible employees (``key 
employees,'' as defined in paragraph (c) of Sec. 825.217) if such 
denial is necessary to prevent substantial and grievous economic injury 
to the operations of the employer; or may delay restoration to an 
employee who fails to provide a fitness for duty certificate to return 
to work under the conditions described in Sec. 825.310.
    (d) If the employee has been on a workers' compensation absence 
during which FMLA leave has been taken concurrently, and after 12 weeks 
of FMLA leave the employee is unable to return to work, the employee no 
longer has the protections of FMLA and must look to the workers' 
compensation statute or ADA for any relief or protections.