Let's assume that an employee is entitled to leave under the Family and Medical Leave Act.  What exactly are the employee's rights?

The discussion in this guide assumes that the employee has sought leave for a serious medical condition.  If the employee has obtained leave for, say, the birth of a child, then the rules are essentially the same without the medical certification and recertification requirements.

1. Is the employer entitled to request status reports?

Yes.  This is provided for in the text of the statute itself.  The statute provides that the employer may require the employee "to report periodically to the employer on the status and intention of the employee to return to work."

However, an employer is not entitled to harass employees who are on leave.  The statute makes it illegal to "interfere with" or "restrain" the exercise of FMLA rights.

2. Is the employer entitled to request a recertification of the employee's medical condition?

Yes, but only under limited circumstances:

  • If the original leave period was longer than 30 days, then the employer cannot request recertification until the end of the original leave period.  For example, if any employee obtains certification for six weeks' leave for an operation and recuperation, the employer cannot request recertification until the six weeks are over.
  • However, an employer can request recertification immediately if (1) the employee requests an extension of leave, (2) the circumstances described in the original certification have changed significantly, or (3) the employer receives information that casts doubt on the original certification or the stated reason for the absence.
  • Unless one of the above conditions apply, the employer may request recertification no more often than every 30 days.
  • In the case of a condition that requires intermittant leave on a long term basis (for example, if the condition is certified as being permanent and requiring leave one day per week), the employer may request recertification every six months.
  • In all cases, recertifications may be requested only in connection with the absence of the employee.  An employer is not entitled to recertification after the employee has returned to work.

3. Can the employer require a fitness for duty certification before allowing the employee to return?

Yes, but only if two requirements are met:

  • The original written notice to the employee at the beginning of the medical leave must have advised the employee of this requirement.
  • The requirement must be part of a uniformly applied policy or practice that applies to all similarly situated employees.

4.  When the leave is completed, is the employee entitled to restoration to the employee's former job?

Not necessarily.  If it is necessary to fill the employee's position during the leave, the employer can restore the employee to "an equivalent position with equivalent employment benefits, pay, and other terms and conditions of  employment."

5. What about the employee's benefits while on leave?

The statute provides that the taking of FMLA leave "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced."  There are extensive regulations dealing with group health insurance and the like.

6. Can the employee be fired while on leave?

Yes, but only under narrow circumstances.  If the employer can show that the employee's position would have been eliminated anyway (for example, due to layoffs or a plant closing), then the employer is not required to give the employee greater rights than employees who were not on leave.  The employer bears the burden of proof on this issue.

Also, an employee who fraudulently obtained FMLA leave is not entitled to reinstatement.

7. Are any employees exempt from the job restoration requirement?

Yes, there is an exemption for "key employees."  The rules for key employees are complex, but the essence of the rules is the following:

  • The employee must be within the highest paid 10% of employees within a 75 mile radius.
  • The employer must show that the restoration of the employee would cause substantial and grievous economic injury to the employer.  This is a more stringent standard than the "undue hardship" rule applied in disabilities cases.
  • The employer must provide a detailed notice to the employee at the time that the employee requests (or takes) leave.

8. Once the employee returns to work, are the employee's FMLA protections completed?

No.  The employee is protected from discrimination and retaliation.  In addition, the regulations provide that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies."

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes