“Do I have any right to reinstatement when I return from a medical leave?”

Question: I am a VP and have been on a medical leave for 8 weeks. My employer has posted my job on their website and has said they do not have to guarantee a position for me and I will “probably be terminated.”

What are the rules regarding reinstatement when an employee goes on a leave?

Covina, California

Answer: Almost all American workers who go out on medical leave are entitled to reinstatement to their own job or a substantially similar one under the federal Family Medical Leave Act, commonly called “FMLA.” With very few exceptions, employees are entitled to take up to 12 weeks of unpaid leave if they, or a member of their family, experiences a medical problem.

There are some exceptions, and some limitations, which I can’t review for you here.

However, in our Newsletter/Q&A Library, you will find a Newsletter I wrote last year entitled “FMLA – The 50 Things You Need to Know.” I strongly suggest you read it carefully. To do so [click here]. Some people say it is the best summary of FMLA they’ve found anywhere on the internet.

In all events, I strongly suggest you send an email to your HR Director and say, in your own words, “I believe I am entitled to reinstatement to my position when I return under the federal FMLA law, or the California Family Rights Act. Please confirm that you agree with me, or let me know as soon as possible. If you disagree, and if so, why you disagree. I am hoping to avoid any disruption in my contributions to the company, or to my own career.”

If you were not told by HR that you have FMLA rights, as you should have been, even if you did not meet all FMLA requirements, you may have some legal ground to “stand on” in your attempt to get reinstatement.

If for some reason you are not covered by federal FMLA, you may be covered by California’s own FMLA law, the California Family Rights Act. I am not entirely familiar with California’s laws, but California’s state laws tend to be quite employee-friendly. I also recommend you contact an experienced employee-rights attorney in your locale for a consultation. You can find one by either Google-ing or by calling your local Bar Association.

My expectation is that you have more legal rights than you now know. My hope is that you’ll be able to return to your job, and that this has been helpful. My best to you.

Best, Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

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