If I’m on FMLA and have been released to go back to work, what are my rights if my employer doesn’t want me returning back until later date?

UPDATED: Aug 25, 2011

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If I’m on FMLA and have been released to go back to work, what are my rights if my employer doesn’t want me returning back until later date?

I needed 2 surgical procedures. My employer told me to wait until the following year, so I did. I knew I would be out at least 8 weeks and told that to my employer. I filled out FMLA paperwork at work; I also had 4 weeks and 3 days paid off days. My doctor gave me a release date and I in turn notified my employer. My employer is putting off me going back to work. My employer is also making me do a work step program (physical). I’m concerned if I can even do the physical. Can they legally keep me from going back to work?

Asked on August 25, 2011 Texas


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I believe what you are asking is about a right to reinstatement after FMLA leave. The right to be reinstated is not always absolute.  It has been held that an employee can be terminated while under FMLA if the termination is unrelated to the FMLA leave (in other words he or she would have been terminated but for being on leave).  But generally there is a right to return to work an upon return to work, the employee must be reinstated to the same or a genuinely equivalent position. If the employee is not eligible for such a position because he or she needs to renew a license, pass a continuing education class, or the like, the employer must give the employee a reasonable opportunity to fulfill this requirement. The FMLA excepts from the reinstatement requirement certain "highly compensated employees," where reinstatement would cause the employer serious economic hardship provided the employer tells the employee he or she will not be reinstated after leave, and the employee does not return to work. Another exception is to the reinstatement requirement is, again, if the employer can show that the employee would have been fired even if the employee had not taken FMLA leave. This is called the "positive elimination defense."  Closing a business can fall under this defense.  What makes me concerned here is the work step program that you spoke of.  Is this a requirement?  Sounds to me like maybe not and you arebeing set up to fail.  Seek some consultation here.  Good luck.

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