Workers are not guaranteed reinstatement after FMLA

On Behalf of Dunlap Fiore, LLC |

Employees in Louisiana who choose to exercise their right to take time off and have their job status protected under the Family and Medical Leave Act (FMLA) are often uninformed about certain underlying laws that are part of FMLA. Employers have rights just as employees do, and it is essential to understand these lesser-known parts of the law. One is the limitations on an employee’s right to being reinstated in the job.

Whether the employee was taking FMLA time off or not, the law does not provide protection from employment if factors that might have arisen if the worker was working. For example, if the employer decides to downsize and dismiss the employee, it is legal so long as the employer was planning the layoff anyway.

Likewise, in some jobs, shifts are eliminated or there is a reduction of overtime. An employee who was set to return from FMLA will therefore not be entitled to regain the shift or the overtime hours. The exception is if another employee is given the shift, the employee who was on FMLA can return to his or her shift if it was the same shift they were on before taking FMLA.

Employers are also allowed to decline to reinstate workers if they are salaried key employees and the decision is to stop grievous economic injury to the employer’s business. Failure to perform essential functions of the job when returning from FMLA is also justification not to reinstate the employee. Workers who fraudulently received FMLA time off will not be protected if the employer does not reinstate them.

An employer might be concerned if the idea of employment litigation is broached by an employee who is not reinstated after exercising their rights to use FMLA, but there are defenses under employment law and a lawyer can help.


Source:, “825.216 Limitations on an employee’s right to reinstatement.,” accessed on Dec. 12, 2017