Frequently Asked Questions About the FMLA Part IV: Reinstatement and Remedies

Q. What are my rights when I am ready to return to work from an FMLA leave?

A. Generally, if you seek to return to work at the end of your Family & Medical Leave Act (“FMLA”) leave, your employer must reinstate you to your job, or an equivalent job in terms of duties, compensation, benefits, and other terms and conditions of employment.
It is important to note that normally an employee loses this protection if he or she takes more than 12 weeks off. However, as discussed in a recent article, under certain limited circumstances the FMLA Can Protect an Employee Who Took a Medical Leave for More Than 12 Weeks.

Q. Does my company always have to return me to my job after my FMLA leave?

A. Although employers usually have to reinstate you to your job or an equivalent one at the end of your FMLA leave, there are several exceptions. First, a company does not have to reinstate you if it had a mass layoff or reduction in force while you were on your FMLA leave, and it can prove it would have laid you off even if you had not taken an FMLA leave.

Second, if you are a “key employee,” then your employer might be able to refuse to reinstate you if it can show it will experience a “substantial” and “grievous” economic injury to its business if it did so. The FMLA defines key employees to be employees whose salaries are in the highest 10% of the company’s employees within 75 miles of your worksite.

Q. What damages can I recover in a case under the FMLA?

Thumbnail image for Money Damages Gavel.jpgA. An employee who wins a lawsuit under the FMLA can recover his or her lost wages and benefits. In some circumstances, you also can recover double damages (called liquidated damages) equal to your lost wages and benefits. In addition, you can recover your attorney’s fees and legal costs.

However, the FMLA does not allow you to recover damages for emotional distress or pain and suffering you have experienced. It also does not permit you to recover punitive damages.

Q. My company is violating my right under the FMLA. What can I do?

It is illegal for your employer to refuse to permit you to take time off that you are entitled to under the FMLA. Likewise, it is usually illegal for a company to fire you instead of letting you return to work after your FMLA leave, or to retaliate against you because you requested or took an FMLA leave.

For more information about the FMLA, please refer to our previous Frequently Asked Questions about FMLA Basics, Types of FMLA Leaves, and Requesting an FMLA Leave.


Rabner Baumgart Ben-Asher & Nirenberg represents employees in New Jersey or New York with employment law claims under the FMLA. If your employer is violating your rights under the FMLA, please call us at (973) 744-4000 or contact us online.

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