JOB RESTORATION
Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

+ Notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave. (A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.)

+ Notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;

+ Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and

+ Make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

NOTICE AND CERTIFICATION
Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense. Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. Employers may also require employees to provide medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member, second or third medical opinions (at the employer's expense) and periodic recertification, and periodic reports during FMLA leave regarding the employee's status and intent to return to work.

When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

The final rule implementing FMLA is contained in the January 6, 1995, Federal Register. For more information, please contact:

Federal U.S. Department of Labor Wage and Hour Division
2315 Federal Building
844 King Street
Wilmington, DE 19801
(302) 573-6112 - Phone
(302) 573-6365 - Fax

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