Returning to work after FMLA leave: Employee Rights and an Employer’s Duty

No one should be put in the position of choosing between their job and taking care of themselves or a loved one.  Fortunately, federal law provides leave protections for many employees when who are injured or ill. More specifically, the Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of  unpaid leave for eligible employees for qualifying reasons like the birth of a child, a serious health condition, or to care for an immediate family member with a serious health condition.  During this time, employees are entitled to have health benefits maintained as if they were working.  Employees also have the right to return to the same or equivalent position at the conclusion of the leave. This is true even if the employer has filled the position or restructured the job as a result of an employee’s absence.  Taking FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the leave.

But what happens if an injury or illness continues to impact an employee after the 12 week period expires?  A number of issues can arise in this situation because an employee’s right to return to work is finite.  If an employer can show that an employee would no longer be employed at the time of their return, for reasons unrelated to utilizing FMLA leave, it can terminate the employee. In addition, if an employee is no longer able to perform an essential function of a position due to a physical or mental condition, including the injury or illness that originally prompted the leave, then the FMLA does not guarantee restoration to that position.  However, the employer may have obligations to the employee pursuant to the Americans with Disabilities Act (ADA), worker’s compensation laws, or state laws such as Washington’s Law against Discrimination (WLAD).

Therefore, “If an employee is a qualified individual with a disability within the meaning of the ADA [or WLAD for that matter], the employer must make reasonable accommodations… barring undue hardship.” Id. (b). For example, an employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship. In conclusion, it is important to understand that while the FMLA protects an employee’s right to return to work, this right must be exercised at the end of the leave period, which can extend up to 12 weeks.  If an employee’s ability to return to work is unclear, it is important to communicate with the employer and, if medically possible, attempt to return to work.  While the FMLA may not protect an employee in such situations, the ADA and/or WLAD may afford additional protections in the form of a reasonable accommodation.  Initiating an interactive process between employee and employer is the best way to determine whether an accommodation is a reasonable option to allow continued employment.

Individual employment issues surrounding this subject vary by case. These posts are meant to be educational and are not legal advice. For your own specific situations please seek legal counsel so that your unique set of circumstances can be considered.  Our firm is prepared to assist you in these matters, reach out to us at or call us at 206-448-8100.


IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email:, or visit or website for more information.