FMLA Requirements to Return to Work

The Family and Medical Leave Act requires certain employers to provide unpaid leave to eligible employees who need time off from work to be under the care of a doctor for a serious health condition of their own or the serious health condition of a family member. The FMLA was enacted to protect workers from being discharged because of health conditions that render them unable to work.

FMLA Basics

The U.S. Department of Labor Wage and Hour Division enforces FMLA regulations. Details about FMLA and forms are available at the Wage and Hour website, When an employee believes he needs time off, he contacts the human resources department's compensation and benefits specialist to discuss his options and the FMLA process.

In cases that prevent the initial face-to-face conversation about the FMLA process -- such as an emergency medical issue that requires immediate attention -- an employee simply contacts the human resources department to inquire about FMLA leave and request paperwork. When an employee discloses her need for a leave of absence, employers are obligated to provide information about FMLA leave and suggest preliminary action to start the leave of absence process.


Initial paperwork for FMLA leave includes Form WH-381, Notice of Eligibility and Rights & Responsibility. A completed Form WH-381 states the terms and conditions of an employee's eligibility for FMLA leave, the reason for which the employee is entitled to FMLA leave as well as the information required from the employee's physician. In addition, the form states guidelines for health insurance coverage and the parties responsible for paying health insurance premiums. Form WH-381 is also used to determine whether an employee will receive her regular wages during FMLA leave. FMLA leave is unpaid leave; however, many employees use accrued vacation, sick time or other paid time off so they don't lose income during their FMLA leave. Form WH-381 essentially guarantees the leave is for FMLA purposes and that the employee's job is protected pursuant to the regulations of the act.

Job Restoration

Job restoration is an important element of the Family and Medical Leave Act. One of the purposes of the act was to mandate fair employment practices concerning employees who need to be off work for serious health conditions, including pregnancy. With respect to job restoration, FMLA leave for pregnancy amends the Pregnancy Discrimination Act of 1978 by ensuring women would not be penalized for requiring time off from work and that time off for pregnancy would be treated the same as time off for sick leave or leave of absence because of disability. Form WH-382, the FMLA Designation Notice, briefly states requirements for returning to work after FMLA leave. Typically, an employee provides the employer with a fitness-for-duty statement, which is a doctor's statement, indicating the employee is capable of resuming her usual job duties.

Employer Obligations

Employers have an obligation to restore an employee to the same job or an equivalent job upon return to work after FMLA leave. This doesn't necessarily mean the employer must hold a vacant position for the employee for the entire length of his FMLA leave, especially if doing so would impede business continuity. An equivalent job must be a position with the same duties, compensation and benefits. In other words, the employer violates FMLA if an accountant who earned $75,000 per year returns to work after FMLA leave and is assigned to a bookkeeper's job paying $65,000 per year. However, it's acceptable to assign a legal secretary to the litigation section of a law firm at $45,000 per year after he returns to work from FMLA leave if he previously earned $45,000 per year as a legal secretary in the law firm's business law section.