When employees take extended sick leaves, employers often have no choice but to fill their positions with permanent replacements and thereafter to inform them that they will not be reinstated to any position at the conclusion of their leaves. In enacting the Family and Medical Leave Act(FMLA) in 1993, Congress sought to limit the circumstances in which employers could take such actions. [FOOTNOTE 1]Under the FMLA, an employer must, with certain exceptions, restore a covered employee to an equivalent position if the employee returns to work upon the conclusion of a 12-week leave for the “serious health condition” of the employee or a member of the employee’s immediate family. [FOOTNOTE 2]

Although the FMLA states that a covered employee is entitled to restoration to an equivalent position at the conclusion of 12 weeks of leave, the FMLA does not specifically address whether an employer’s failure to restore an employee to his job following the 12-week period of leave violates other prohibitions of the FMLA. For example, the FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under the [FMLA].” [FOOTNOTE 3]

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