An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 1296 Once the employer has returned the employee to work, however, the employer may require the employee to undergo a fitness for duty examination if it has reason to question the employee’s health care provider’s opinion. 1297 Under the ADA and FEHA, the fitness for duty examination must be job-related and consistent with business necessity, but it can be based on events which occurred prior to the FMLA leave. 1298 b. Defenses To Denying Reinstatement The FMLA lays out two reasons for denying an employee reinstatement to his or her position after FMLA leave. i. Denial Of Reinstatement Because Employee Was Laid Off An employee has no greater rights to reinstatement, benefits and other conditions of employment than if the employee had been continuously employed during the FMLA leave period. A school must be able to show that an employee would not otherwise have been employed at the time reinstatement is sought in order to deny reinstatement to the employee. 1299 Thus, if an employee is legitimately laid off during FMLA leave, the employee would not be entitled to reinstatement. 1300 ii. Denial Of Reinstatement To “Key” Employees A school may deny reinstatement to a “key” employee (i.e., an employee who is among the highest paid 10 percent of all the employees employed by the school within 75 miles of the work site) if:  Such denial is necessary to prevent substantial and grievous economic injury to the operations of the school; 1301

 The school has given the employee written notice at the time the employee gives notice of the need for FMLA leave that he or she qualifies as a key employee. The school must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the school should determine that substantial and grievous economic injury to the school’s operations will result if the employee is reinstated from FMLA leave. 1302  The school notifies the employee of the intent to deny reinstatement on such basis at the time the school determines that such injury would occur; 1303 and  In any case where the leave has commenced, the employee elects not to return to employment after receiving such notice. 1304

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 301

Made with FlippingBook HTML5