Do Employers Have to Give You Your Job Back Under FMLA Laws?

by Mary Tucker-McLaughlin ; Updated September 26, 2017
The FMLA may not protect you against unemployment.

Since its inception in 1993, the Family Medical Leave Act (FMLA) provides much-needed medical leave to thousands of employees. FMLA preserves an employee's position when he must take a family or medical leave of up to 12 weeks. The act however, is not a guarantee of employee reinstatement. Mitigating circumstances can interfere with an employee's return to work after taking leave under the FMLA.

Returning to the Same Position After FMLA

Employees applying for FMLA leave should understand that although the purpose of FMLA is to help preserve an employee's position while on medical leave, there is no guarantee that the employee will return to the exact same position. For example, a machine technician works in many areas of an organization doing different duties, although the designation of the title is the same across the board. An employee who takes a medical leave and is a machine technician in the lab, may return to find that he is now a machine technician in area 400 of the organization. His job title remains the same, but his department may be different.

Circumstances that Mitigate Returning From FMLA

Some circumstances may interfere with an employee's ability to return to their position. Under the law, an employee on medical leave has the same rights as if he continued to work without taking leave. If a company reorganizes during his leave and eliminates the employee's position, the FMLA cannot protect the employee from termination as he would lose his job regardless of his medical leave. Safety concerns may also mitigate an employee's ability to return from family or medical leave. Some serious health conditions can present a safety hazard depending on the job duties involved. In these situations, an employer may ask for a fitness for duty certification from a physician certifying that it is safe for the employee to resume normal job duties.

Video of the Day

Brought to you by Techwalla
Brought to you by Techwalla

Fitness-For-Duty Certification

Employees may need a fitness-for-duty certification to resume their employment. The fitness-for-duty certification is only necessary for a personal and serious health condition and not that of a close family member. The employer can only seek this certification based on the condition that necessitated the leave. Fitness-for-duty certifications are not necessary for each incidence of intermittent leave; instead, it is only required every 30 days if the safety risk is apparent. An employer may delay reinstatement to a position if prior notification is given to the employee and the employee does not comply. If the employer provides prior notification and the employee refuses to comply with the fitness-for-duty requirement, the employer does not have to reinstate employment under FMLA.


Clear and consistent communication between the employer and the employee is critical during family and medical leaves. If the employer fails to provide proper notification of the requirements for applying for FMLA, the employee is protected. If the employee fails to comply after receiving proper notification by the employer, the employee may risk denial of FMLA privileges, or possible termination due to excessive absence.

About the Author

As an educator, television producer and public relations/human resources professional, Mary Tucker-McLaughlin's work has been broadcast on radio and television with affiliates in the Midwest and the South since 1992. Her work has also been published in the "St. Louis Suburban Journals." Tucker-McLaughlin is an assistant professor in eastern North Carolina with a Ph.D. in mass communications from the University of South Carolina.

Photo Credits

  • Jupiterimages/Photos.com/Getty Images
Cite this Article A tool to create a citation to reference this article Cite this Article