[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.216]



[Page 774]

 

                             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.