FMLA return to work pointers for employers

By Jason Wilson Last updated Jul 7, 2021

After an employee has taken FMLA leave, they have the right to return to their previous job or an equivalent job. However, there are a number of situations where looks can vary. For example, it may be unclear what exactly qualifies as an equivalent position. Such inconsistencies can result in employees filing lawsuits or complaints with DOL because their rights have been violated. Therefore, it is best to fully understand the process before an employee returns from an FMLA vacation.

In this article from BusinessManagementDaily.com, we cover FMLA return-to-work guidelines, including:

Steps Employers Must Follow When Planning Workers Return to Work from FMLA Vacation
Tips for employees regarding vacation laws, entitlements, and FMLA guidelines for returning to work
More helpful tips to help both employers and employees during the FMLA vacation process

What rights does an employee have when returning from FMLA leave?

FMLA was enacted to protect employees’ jobs during times when they need a short break for medical reasons or to care for a sick family member. This means that the employee has more or less the right to return to his or her equivalent job through FMLA. What are employees entitled to after their 12-week leave of absence?

Same or same position and terms of payment

Unless the position is a key position that would cost the company a significant loss, the employee is entitled to the same position and remuneration upon return to work. Key employees are not as protected under FMLA because companies have the right to maintain essential functions in their workplace.

Same health benefits / employee compensation

Eligible employees are entitled to the same health insurance / health insurance and employee compensation as before the holiday. However, employers cannot require an employee to take unpaid leave if they have an injury that is covered by employee compensation.

Same tasks / working conditions

An equivalent position and working conditions are mandatory and protected by the FMLA. This means that the employer cannot annoy the employee’s absence and push him into a worse role.

If John was a window cleaner before, he shouldn’t be demoted to toilet cleaner after his vacation, and if John feels his rights have been violated he may be able to file a lawsuit. The same terms of employment are also an employment right for a worker on return to work. Employees deserve to be looked after throughout the FMLA process.

Same or similar work plan

The worker should expect the same work schedule when returning to work. This means that the employer cannot take advantage of the employee by putting him on the graveyard shift or by dividing his shifts into uncomfortable blocks.

Employee took more than 12 weeks of vacation? The deal is over

Workers who take more than 12 weeks of vacation will lose their FMLA rights and will no longer be protected. This means that HR should work closely with employees to ensure they can get back to work when they need to.

With this in mind, however, an employee may be eligible for additional protection under the American’s with Disabilities Act.

Avoid resentment and discrimination in the workplace

Workers who take temporary leave can sometimes cause problems in the workplace.

For example, suppose a tough job is about to be done and an employee decides to conveniently take an FMLA vacation that coincides with this time. As you can imagine, the other staff / managers dealing with the task will not be happy. It is generally best to keep information about an employee’s sick leave secret, even if coworkers ask questions, vacation information is private.

However, if an FMLA vacation is legitimate, little can be done. If abuse is anticipated, there are other options that you can pursue.

Employees can file complaints about FMLA violations

Your employees can contact the Department of Labor if they believe their FMLA rights have been violated. The Department of Labor’s Payroll Department is responsible for filing complaints about FMLA violations. Employers are prohibited from taking revenge or denying an employee’s right to file a complaint.

Complaints can be submitted through the wages and hours department, providing the following information:

Address and phone number of the employee.
Circumstances (reason) of the complaint.
Company phone number.
The name of the management, HR, owner of the company.
Head office.

How to properly deal with employee complaints

There will always be situations where the employer has to deal with an employee complaint. It also happens that employees often use FMLA as the basis for filing a lawsuit.

For example, let’s say John, a government employee, may want to be on sick leave because his family member got coronavirus during the pandemic and is a little too comfortable staying home while on vacation. After his 12 work week vacation is over, John asks to work at home for fear of getting sick. When his employer denies the application, John files a complaint that his FMLA rights have been violated.

This lawsuit would likely be dismissed as the employee has already used up his vacation and is not entitled to more time off.

Nevertheless, all complaints should be treated carefully and seriously. Other complaints may have more justification, e.g. B. when an employee’s existing job is not available and he feels that the new position assigned to him is not appropriate.

The HR department must take over the work of handling vacation complaints so that there are no conflicts between the employee and his manager. However, managers should always be cautious when dealing with an employee who is on vacation and should not take any action that might appear retaliatory.

Supervisors and HR should keep a close eye on employees’ free time and ensure that the employee returns to work promptly after the vacation is over.

What is FMLA?

FMLA (The Family And Medical Leave Act) is a law introduced by the DOL (US Department of Labor) that protects workers’ rights for unpaid sick leave and also allows employees to take time off work to look after the family to worry about members or other qualifying reasons.

Here are some examples of why an employee might want to take unpaid sick leave:

birth of a child
Injured family member
Anxiety depression
migraine
To adopt a child
Care of an injured service employee

FMLA is unpaid leave, but it is perfectly okay for workers to request their paid leave while they are away if the employer agrees.

It’s important to note that FMLA is only available with insured employers, which means FMLA vacations only apply to government employees and companies with 50+ employees, all of whom work within 70 miles of the company’s workplace / location .

When can employees next take an FMLA vacation?

So an employee has been back from vacation some time and wants to take more time for unpaid vacation. When will the employee’s FMLA vacation be reset? This depends on how your company’s FMLA calendar is set up.

The four FMLA calendar methods are:

The calendar year.
Every fixed 12-month “vacation year”, such as a fiscal year, a year that is required by state law, or a year that begins on the “anniversary” of an employee.
The 12-month period measured from the date an employee’s first FMLA vacation begins.
A “rolling” 12 month period measured from the date an employee takes an FMLA vacation.

If the employer does not choose a calendar method, the employer must use the calendar method that is most convenient for the employee. So if you haven’t chosen a method yet, do so now. Otherwise, each time you process an FMLA leave request, you will need to calculate entitlement in four ways.

Proper communication is key to a successful FMLA return

Do you communicate sufficiently with your employee during parental leave?

The key to properly taking FMLA vacation leave is proper employee tracking.

For example, Jane took intermittent vacations to manage her chronic migraine problems. Jane’s employer required her to record her vacation hours in an electronic time counter to keep track of absence.

When HR realized that Jane had used up her 12 weeks of accumulated vacation time, they called a meeting with management to properly return Jane to her full-time position.

Legal Advice: How to Avoid FMLA Scams

Both employers and employees must be careful when dealing with FMLA leave. Appropriate training and education on FMLA vacation guidelines can prevent drama and litigation.

Here are some techniques for employers to use to keep employees honest:

Recertification of the vacation request √

Employers requiring their employees to re-certify their FMLA absence every year is completely legal and will help keep employees honest. The annual certificate of employment means that the employee must see a doctor every year to check whether he still needs interrupted vacation.

Time recording / check-ins √

Employers can contact employees on a random basis to ensure that they are actually seeing a doctor or are making effective use of their sick leave.

Private investigation.

Die-hard employers may even want to hire a private investigator to track down an employee if they have any suspicions about their vacation request.