1-43 29 CFR § 825.214. Employee Right to Reinstatement
General rule. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. See also § 825.106(e) for the obligations of joint employers.
1-43:1 Commentary
1-43:1.1 "Under an Entitlement" or "Under an Interference" Theories
Recall that eligible employees possess prescriptive or substantive FMLA rights. If such rights are violated, then a plaintiff needs to sue under an entitlement (a right denied by employer) or under an interference theory (employer takes actions to disrupt or interfere with receipt of such rights).
• Dimacali v. Cardiology Assocs. of Corpus Christi, No. C-09-111, 2010 U.S. Dist. LEXIS 40005 (S.D. Tex. Apr. 23, 2010) (employee claims denial of entitlement; namely, reinstatement to former position upon exhaustion of twelve weeks of FMLA leave; court grants employer's motion for summary judgment because employee was medically unable to return to work following expiration of twelve weeks; consequently, she lost entitlements).
The Dimacali court relied upon an earlier Fifth Circuit decision in Oatman v. Fuji Photo Film USA, 54 F. App'x 413 (5th Cir. 2002), cert. denied, 538 U.S. 978 (2003). The Fifth Circuit subsequently reaffirmed its adherence to this reasoning.
• Sterling v. City of New Rds., No. 08-424-JJB, 2010 U.S. Dist. LEXIS 764 (M.D. La. Jan. 6, 2010), aff'd, 384 F. App'x 337 (5th Cir. 2010) (no FMLA violation where employee unable to return to work; court rejects argument that letter from plaintiff's physician, provided to employer at outset of FMLA leave, that plaintiff was "expected" to return to work at...
