FMLA Leave and Reinstatement Rights

 

Returning to Work After FMLA or CFRA Leave in California

Eligible employees who use leave under the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) generally have the right to return to the same position—or to a genuinely equivalent or comparable position—when their protected leave ends.

An employer typically cannot avoid this obligation just because it hired a replacement, divided the employee’s responsibilities among other workers, or decided that the temporary arrangement was more convenient. However, reinstatement rights are not absolute. An employer may take an action that would have occurred even if the employee had never taken leave, such as a legitimate companywide layoff. The important question is often whether the employer’s stated reason is genuine or whether the leave contributed to the decision.

If your employer has refused to return you to work, offered you a materially worse position, or terminated you during or shortly after protected leave, contact our office to request a consultation. We represent employees in Sacramento, Northern California, and throughout the state.

What Are FMLA and CFRA Reinstatement Rights?

The FMLA and CFRA provide eligible employees with up to 12 workweeks of job-protected leave during an applicable 12-month period for qualifying family and medical reasons.

The right to take leave is only part of the protection. When the protected leave ends, the employer generally must return the employee to:

• The position the employee held before leave; or
• An equivalent or comparable position that is virtually identical in material respects.

The U.S. Department of Labor explains that an equivalent position ordinarily must have equivalent pay, benefits, working conditions, duties, responsibility, status, schedule, and work location. California’s CFRA regulations provide similar protection. An employee is generally entitled to the same position or a comparable position with equivalent pay, benefits, shift, schedule, geographic location, working conditions, privileges, status, duties, skill, responsibility, and authority.

Who Is Protected by FMLA and CFRA?

The federal FMLA and California’s CFRA overlap, but they are not identical.

Federal FMLA Coverage

For most private-sector employees, FMLA eligibility generally requires:

• At least 12 months of employment with the employer;
• At least 1,250 hours worked during the 12 months preceding the leave; and
• Employment at a location where the employer has at least 50 employees within 75 miles.

Public agencies and certain educational employers are subject to somewhat different employer-coverage rules.

California CFRA Coverage

CFRA generally applies to employers with five or more employees. An employee usually must have:

• More than 12 months of service with the employer; and
• At least 1,250 hours of service during the preceding 12 months.

Unlike the federal FMLA, CFRA does not require the employee to work at a location with 50 employees within 75 miles. CFRA also allows leave to care for a broader group of family members than the federal FMLA, including certain grandparents, grandchildren, siblings, domestic partners, and designated persons.

When the same absence qualifies under both laws, FMLA and CFRA leave will often run at the same time. But there are important exceptions, particularly with pregnancy disability leave and leave to care for family members covered by CFRA but not FMLA.

What Is an “Equivalent” Position After FMLA Leave?

An employer does not necessarily have to return an employee to the exact same desk or assign every minor duty the employee previously performed. But merely preserving the employee’s salary is not enough. An equivalent or comparable position should ordinarily have substantially similar:

• Compensation and eligibility for raises;
• Health insurance and other employment benefits;
• Job duties and responsibilities;
• Authority and decision-making power;
• Title, status, and promotional opportunities;
• Shift and work schedule;
• Work location;
• Opportunity for overtime, commissions, or bonuses; and
• Other material working conditions.

For example, returning a department manager to a clerical position may violate the FMLA even if the employer temporarily preserves the manager’s salary. The loss of supervisory authority, professional status, and meaningful responsibility can make the new position materially inferior.

Likewise, an employer may violate reinstatement rights by moving an employee to a substantially less desirable shift, a distant location, or a position offering materially fewer overtime or commission opportunities.

Can My Employer Give My Job to Someone Else While I Am on Leave?

An employer may use a temporary employee or reassign duties while an employee is absent. But the employer generally cannot refuse reinstatement simply because it prefers the replacement or because it permanently promised the position to someone else. California’s CFRA regulations expressly state that an employee may remain entitled to reinstatement even if the employee was replaced or the position was restructured to accommodate the absence. “Your position has already been filled” is therefore not ordinarily a sufficient explanation by itself.

Can My Employer Fire Me During FMLA or CFRA Leave?

Protected leave does not create complete immunity from termination. An employer may terminate an employee during leave if it can establish a legitimate reason that is unrelated to the leave and that the employee would have lost the job even if the employee had remained continuously at work.

Examples may include:

• A genuine reduction in force affecting the employee’s position;
• Closure of an office or elimination of an entire department;
• Serious misconduct discovered during the leave;
• Expiration of a genuinely temporary position; or
• A previously planned termination supported by contemporaneous evidence.

But employers sometimes use “restructuring,” “position elimination,” or alleged performance problems as a pretext for avoiding reinstatement.

Facts that may cast doubt on the employer’s explanation include:

• The employee had strong performance reviews before taking leave;
• Criticism began only after the employee requested leave;
• The alleged restructuring affected only the employee taking leave;
• Another person continues performing substantially the same work;
• The employer advertised a similar position shortly after the termination;
• Management complained about the inconvenience or duration of the leave;
• The employer gave shifting or inconsistent explanations; or
• The decision occurred immediately before the employee was scheduled to return.

The fact that a termination occurred during or shortly after leave does not automatically establish a violation. Timing becomes much more significant when combined with inconsistent explanations or other evidence.

FMLA Interference and Leave Retaliation Are Different Claims

A failure to restore an eligible employee to the same or an equivalent position may support an FMLA interference claim. An interference claim generally focuses on whether the employer denied a protected right and whether the violation caused harm. The employee does not necessarily have to prove that the employer acted with hostility or discriminatory intent.

Retaliation involves a related but different question: whether the employer took an adverse action because the employee requested leave, used leave, opposed an unlawful practice, or otherwise exercised protected rights.

Examples of possible retaliation include:

• Terminating an employee because of protected absences;
• Counting FMLA or CFRA absences under an attendance policy;
• Demoting the employee after returning from leave;
• Issuing unjustified discipline because leave disrupted operations;
• Denying a promotion because the employee used leave; or
• Pressuring the employee to resign rather than return to work.

Depending on the facts, the same employment decision may support both interference and retaliation claims.

What If I Cannot Return Without Restrictions?

FMLA or CFRA reinstatement may become more complicated when an employee’s healthcare provider releases the employee with restrictions.

Under the FMLA alone, an employee who cannot perform an essential function of the position at the end of protected leave may not have an unconditional right to restoration to that position.

That does not necessarily mean the employer can terminate the employee. A physical or mental condition may qualify as a disability under California’s Fair Employment and Housing Act or the federal Americans with Disabilities Act. Those laws may require the employer to engage in an interactive process and consider reasonable accommodations such as:

• A finite extension of medical leave;
• A reduced or modified schedule;
• Temporary modifications to certain duties;
• Remote or hybrid work when effective and reasonable; or
• Reassignment to a vacant position for which the employee is qualified.

Therefore, the expiration of FMLA or CFRA leave does not automatically end an employer’s obligations. An inflexible policy terminating every employee who cannot return immediately after 12 weeks may violate disability-discrimination law.

If you need additional leave or workplace restrictions, communicate the request in writing and provide reasonably sufficient medical documentation.

Can My Employer Require a Return-to-Work Release?

An employer may sometimes require a fitness-for-duty certification when the employee took leave for the employee’s own serious health condition. Under the FMLA, this generally requires a uniformly applied policy for similarly situated employees. The employer must also provide proper notice that certification will be required. If the employer wants the healthcare provider to address the employee’s ability to perform specific essential functions, it ordinarily must timely provide the employee with a list of those functions.

A return-to-work request should focus on the condition that resulted in the leave and the employee’s ability to resume work. It should not become a pretext for demanding unrestricted access to the employee’s medical history.

What Should I Do If My Employer Will Not Reinstate Me?

If your employer suggests that your position may not be available, do not assume that nothing can be done. Consider taking the following steps:

1. Confirm your readiness to return in writing. Identify the anticipated return date and whether you are requesting any restrictions or accommodations.
2. Request the employer’s decision in writing. If the employer says your position was eliminated or you are not being reinstated, ask it to identify the reason and effective date.
3. Do not immediately resign. An employer may characterize a resignation as a voluntary decision unrelated to leave.
4. Preserve relevant documents. Save leave requests, approval notices, medical certifications, return-to-work releases, emails, text messages, performance reviews, job descriptions, pay records, and termination documents.
5. Document the replacement or restructuring. Preserve job postings, organizational announcements, LinkedIn updates, or other evidence showing who assumed your duties.
6. Prepare a timeline. Record when you requested leave, what managers said, when the leave was approved, when you attempted to return, and when the employer announced its decision.
7. Consult an employment attorney promptly. Different deadlines and administrative requirements may apply depending on whether the potential claim arises under FMLA, CFRA, FEHA, or another law.

For additional guidance before taking leave, see how to request FMLA medical leave and how to avoid submitting an insufficient medical or work-status note.

Frequently Asked Questions

Does Paid Family Leave guarantee that I will get my job back?

Not by itself. California Paid Family Leave generally provides partial wage-replacement benefits. Job protection must ordinarily come from another law, such as FMLA, CFRA, pregnancy disability leave, FEHA, or an employer policy.

Does my employer have to return me to the exact same job?

Usually, the employer should restore you to the same position. If it does not, the alternative position generally must be virtually identical or comparable in its material terms. Preserving salary alone does not necessarily make a lower-status position equivalent.

Can my employer say my position was eliminated?

Yes, but calling a decision a “position elimination” does not make it lawful. The surrounding evidence matters, including whether the work still exists, whether another employee assumed the duties, and when the decision was actually made.

Can protected leave be counted against me under an attendance policy?

FMLA- or CFRA-protected absences generally should not be counted as attendance violations or used as a negative factor in discipline, evaluations, promotions, or termination decisions.

What happens if I need more than 12 weeks of medical leave?

You may have no remaining leave under FMLA or CFRA, but an additional finite period of leave may be a reasonable disability accommodation under FEHA or the ADA. The employer should evaluate the particular request instead of automatically terminating you when protected leave expires. Failure to do so is one of the most common bases for disability discrimination and failure to accommodate cases in California.

If you were denied reinstatement, demoted, transferred, or terminated during or shortly after family or medical leave, contact our office to request a confidential consultation. We can evaluate whether the employer’s decision may violate FMLA, CFRA, California disability-discrimination law, or related protections.

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