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Protecting Your Rights in the Workplace

What Happens When An Employee Decides Not To Return To Work After FMLA Leave?

FMLA Discrimination Attorneys

The Family and Medical Leave Act (“FMLA”) protects an employee’s right to take up to 12 weeks of unpaid leave for a family or personal matter as long as the company is of a particular size. Upon return to work, it is stipulated that the employee should be reinstated to their former position or given a similar one. Additionally, according to the US Department of Labor, “…these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.”

However, it may be the case that several weeks into a leave of absence, an employee chooses not to return to work and notifies the employer of their decision. This may be due to the birth of a new child or wanting to care full-time for a sick parent. Should that happen, it is no longer the employer’s responsibility to provide health benefits to that person or guarantee that the vacated position will still be available to them.

It is also likely the case that an employer cannot terminate your job for being hospitalized with Covid-19 or needing time to recover from Covid-19.  Learn more about FMLA and watch related videos here.

Employers: Recovering health care costs expended for the employee’s benefit while out on leave

There are also protections for employers concerned about potential losses connected with an employee who decides not to return to work.  Under the regulations, the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work, unless the reason for not returning to work is due to, among other things, “circumstances beyond the employee’s control.”

The Department of Labor (DOL) makes clear that this phrase is “necessarily broad” and includes a situation where the employee chooses to stay home with a newborn child who has a serious health condition. However, the DOL acknowledges that this caveat clearly does not cover a situation where the employee chooses to stay home with a “well, newborn child.”

Talk To An Experienced FMLA Discrimination Attorney

Speak with an employment attorney at White & Hilferty to learn your medical leave rights during the pandemic.    Call 24/7  646-698-8990 or Contact Us online to schedule your free consultation.