Denial of FMLA Reinstatement: Employee Options

The key employee who has received notification that reinstatement after FMLA leave will be denied has two choices:

1. The key employee may cancel or wrap up the leave.

If the employee has not started the leave, he or she may simply cancel it. In other words, employers may not force key employees to go on leave if they change their minds faced with the facts of non-reinstatement.

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If the key employee is already on leave when he or she receives the non-reinstatement notice, the employer must give the key employee a reasonable amount of time to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return. If the employee is able to return within the allotted time, the employee must be reinstated to his or her former position, or one equivalent to it.

2. The employee may take or continue leave.

The other option for employees is to continue with the leave as planned. The employer must grant the full FMLA leave even if it doesn’t intend to take the key employee back.

Just like nonkey employees who go on leave, key employees are entitled to continuation of their group healthcare benefits. In fact, if the company continues to offer other benefits to employees during FMLA leave, such as pension plan contributions or group life insurance, those will likewise be continued for the key employee, even if that employee will be denied reinstatement at the end of the leave.

In addition, the employer may not recover its cost of health benefit premiums from key employees denied reinstatement (as it could from other employees who do not return after completing their leave).

Coverage must continue throughout the duration of the leave, unless the employee formally resigns by unequivocally stating that he or she will not be returning. This is the same for all employees on FMLA leave.

Requesting Reinstatement Anyway

At the end of a key employee’s scheduled leave, he or she is allowed to request reinstatement even when previously informed that reinstatement will be denied, and even if the employee did not return to work in response to the employer’s notice.

The company must respond to such requests for reinstatement by re-examining their circumstances and determining whether, given the facts at the time of the reinstatement request, the reinstatement would still cause substantial and grievous economic injury.

If the company reaffirms its denial of reinstatement, it must inform the key employee in person or by certified mail.

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That’s the story on key employees. But what about all the other FMLA hassles like intermittent leave? And, especially, what about all the new FMLA responsibilities? Like military leave and reinstatement?  Still a little shell-shocked?

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