Beginning on April 1, 2020, employees across the nation were able to take paid leave for COVID-19 related reasons under the first-of-its-kind Families First Coronavirus Response Act (FFCRA). Soon enough, employees who have utilized all available leave under the FFCRA will return to work. Accordingly, employers must be cognizant of their responsibilities to these employees upon their return from taking Emergency Paid Sick Leave or Expanded Family and Medical Leave.

General restoration provisions

The provisions of the FFCRA make clear that employers have certain responsibilities to restore an employee, upon return from Emergency Paid Sick Leave or Expanded Family and Medical Leave, to the same or equivalent position held by the employee when their leave commenced. An equivalent position means one with equivalent benefits, pay, and other terms and conditions as the employee’s prior position.

Limitations on restoration provisions

In limited circumstances, an employer is not required to restore an employee to their same or equivalent position upon return from Emergency Paid Sick Leave or Expanded Family and Medical Leave. For example, an employee returning from Emergency Paid Sick Leave or Expanded Family and Medical Leave is not protected from employment actions, such as layoffs or furloughs, which would have affected them had the employee not taken leave. To deny restoration of employment on these grounds, the employer must be able to show the employee would not have otherwise been employed at the time reinstatement is requested.

Employers may also not be obligated to provide restoration to “key employees,” as defined under the FMLA, upon the employee’s return from Expanded Family and Medical Leave. Key employees will not be entitled to restoration of their same or equivalent position after taking Expanded Family and Medical Leave where (1) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; (2) the employer notifies the employee of its intent to deny restoration on such basis at the time the employer determines that such injury would occur; and (3) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.

For employers with less than 25 employees, restoration of an employee’s same or equivalent position upon their return from Expanded Family and Medical Leave may also be denied if the following conditions are met:

• the employee took leave to care for their son or daughter whose school or place of care was closed, or whose child care provider was unavailable, for COVID-19-related reasons;
• the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave;
• the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
• where the reasonable efforts of the employer to restore the employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee during a one-year period (beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the employee’s leave began, whichever is earlier), if an equivalent position becomes available.