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FMLA Medical Leave: Do You Have to Reinstate Workers?

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By Cynthia Hsu, Esq. on September 06, 2011 6:46 AM

When one of your workers takes FMLA medical leave, you may be wondering what your rights are as an employer. Do you have to reinstate the employee?

The short answer is: yes and no.

While employees are generally allowed to take up to a 12-week leave from work to attend to medical or family issues, some employees do not need to be reinstated.

But, others do.

You do not have to reinstate "key" employees.

As an employer, it's important to note that you do not have to reinstate certain "key" employees to their former positions after they come back from medical leave. However, there are certain restrictions.

First, "key" employees are rather narrowly defined, and are only those employees who are one of the top 10% highest salaried employees within a 75 mile radius.

Secondly, employers need to notify "key" employees of their status when the "key" employee informs the employer of their desire to take a FMLA leave. And, employers need to notify "key" employees once a decision has been made as to whether or not they will be reinstated.

"Key" employees are generally only denied their former positions if doing so would result in substantial economic harm to the employer.

You do not have to reinstate workers if they would have been fired anyway.

Employers also do not need to reinstate employees if they would have been fired even if they hadn't taken a FMLA medical leave. If, for example, business is bad and an employer needed to close down an office, employers do not need to reinstate that office's employees.

But, in most other situations, if a worker takes a FMLA medical leave employers are required to reinstate employees to the same or equivalent position.

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