Not only does the Family Medical Leave Act (FMLA) provide for unpaid time off to care for your own medical needs or those of a child, parent or spouse, but the FMLA also protects your job and benefits so that you can return to work once you no longer need the time off. The last thing you need while taking care of an urgent medical issue is to worry about keeping your job, and that is why the FMLA guidelines are clear about being able to return to your job without fear of retaliation.
One of the protections offered under FMLA guidelines is that you will be able to return to the same position you held prior to taking a leave of absence. If for some reason your job is not available then you should return to a nearly identical position upon your return.
If you return to work and find that you have been reinstated to a different position, this may be in violation of FMLA guidelines and you could file a claim as a result.
What Are FMLA’s Guidelines for Reinstatement?
According to FMLA guidelines, when you leave your position you are entitled to return to the exact same position you held before, or the closest equivalent in the event that your job is no longer active.
If you exceed 12 weeks of leave and are still unable to return to work, your employer no longer has to maintain your position.
What Counts as an Equivalent Position?
An equivalent position should be as close to your former position as possible.
The new position should include the same or similar duties and status, require the same skill level, offer identical pay and benefits, offer the same benefits such as health insurance and vacation benefits and it should also offer the same work schedule at the same location as before, or one close by.
For example, if you worked in a bakery prior to taking FMLA leave and your job was to make bread, if your company no longer makes bread upon your return you might be asked to make pastries instead. In this way, you are still performing similar duties but it is not the same job as before, and that is allowable under FMLA guidelines because the job you held before no longer exists.
However, if you made bread before you took your leave and when you return someone else is doing your job, you are entitled to get the same job back. Your job cannot be given to someone else on a permanent basis while you are gone.
Aside from learning new things like updated software or new techniques, you should not have to worry about learning new skills in an equivalent position. You should be able to understand how to meet the demands of your new position from the start.
When Can I Be Reinstated?
Your reinstatement should take place immediately after your FMLA leave expires. Though you might not be able to provide notice to your employer ahead of taking your FMLA leave, you should be able to indicate how long your leave will last. That way there is an agreed upon target date for you to return to your position.
In some cases you might be able to return sooner than you thought, and if that happens you might not be able to start right away but you should be permitted to return as soon as possible. For example, if your employer hires a temporary worker to assume your position while you are away, they may not be able to let the temp employee go sooner than his or her contracted end date, in which case you would not be able to return early.
Speak With An Employment Law Attorney
FMLA issues can be complicated given the many requirements that employers and employees must meet to qualify for it in the first place. However, an eligible employee is entitled to receive all of the FMLA benefits without fear of retaliation or loss of employment. Should these things occur, the employee should consider filing a claim against the employer.
Filing a claim is a complicated process. Hiring an employment attorney will not guarantee that you will win your claim, but having an expert working on your case will greatly increase your chances of success. An experienced employment attorney will be able to determine what documentation and evidence you need to support your claim, and he or she will also be able to fight for all of the damages and remedies available to you. You could be entitled to back pay, employment benefits and other equitable relief.
Most employment law attorneys will work on a contingency basis so that you will only be required to pay if you win your case.
