Returning to Work After Medical Leave.

Aug 17

When returning from a CFRA or FMLA medical leave…

You must be returned to the same or comparable position that is equivalent (i.e. virtually identical) to your former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, prerequisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

You are entitled to reinstatement even if you have been replaced or your position has been restructured to accommodate your absence.

If you are no longer qualified for the position because of your inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, as a result of taking leave, your employer must give you a reasonable opportunity to fulfill those obligations when you return to work.

There are certain situations where your employer may not be required to reinstate you:

(1) Your employer may not be required to reinstate you if your employer proves that had you been continuously employed during the time you took leave your employment would have ceased or your hours would have been otherwise reduced. Sometimes employers try to prove this by arguing that you were replaced or your position was restructured to accommodate your absence. However, this will not satisfy your employer’s burden to prove had you stayed employed, your employment would have ceased/hours would have been reduced.

(2) Your employer may not be required to reinstate you if your employer proves that you were a “key employee.” Your employer must prove the following:

You were a salaried employee.
You were among the highest paid 10% of all of the employees within 75 miles of the worksite you worked at prior to your leave.
Your reinstatement will cause substantial and grievous injury to the operation of your employer.
Certain notice requirements, including that your employer provided you written notice that you are a key employee and explain its finding that substantial and grievous economic injury will result.

Your leave is not considered a break in service

The leave cannot be considered as a break in service, for longevity purposes, seniority under a collective bargaining agreement, or any employee benefit plan.

You must return with no less seniority than you had when you started leave, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.

No discrimination or retaliation

Your employer cannot discriminate, refuse to hire, discharge, fine, suspend, or expel you because you exercised your right to this leave, or you provided information or testimony as to your own leave or another person’s leave, in response to any inquiry or proceeding related to these leave rights.

No interfering with these rights

Your employer cannot interfere with, restrain, or deny your exercising or attempting to exercise any CFRA rights.

Accommodations after any type of medical leave…

Accommodations For Disabilities (Click here to learn which disabilities are covered).

Your employer is required to provide you with modifications or adjustments (i.e. reasonable accommodations) that:

enable you to perform the essential functions of your job or the job you applied for
enable you to have an equal opportunity to be considered for a job you applied for
enable you to enjoy the same benefits and privileges that are enjoyed by your peers who do not have a disability

What are examples of reasonable accommodations?

Your employer may be required to modify some of its work rules, its facilities, or the terms or conditions of your employment to enable you to work.

This could include:

making facilities readily accessible and usable
allowing assistive animals at work
transferring an employee to a more accessible worksite
providing assistive aids and services
restructuring your job
providing part-time or modified work schedule
altering when/how an essential function is performed
modifying exams, training materials or policies
modifying an employer policy
modifying supervisory methods (eg. dividing complex tasks into smaller parts)
providing additional training
permitting an employee to work from home
providing paid or unpaid leave for treatment & recovery
providing reassignment to a vacant position

Interactive process is required…

Once your employer is aware you may need an accommodation, it must engage in an interactive process with you to determine what accommodation will enable you to work.

DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.

Colette Mahon