News & Insights

FMLA Leave and Reinstatement
July 9, 2014
by Robert Conte


South Bend / Mishawaka, IN – The Seventh Circuit recently held that an employee who returns to work at the end of FMLA leave may be entitled to reinstatement, even if the employer was not expecting her (Gienapp v. Harbor Crest, 7th Cir., June 24, 2014).

In this case the employee requested leave to care for her adult child, completed the FMLA paperwork, but left blank the question about the leave’s expected duration. The employer did not follow up with the employee, but did review the physician’s statement which stated that the employee’s leave might extend beyond the April 1 exhaustion date of FMLA entitlement. The employer, believing that the employee would not return from work at the end of her FMLA entitlement, hired a replacement employee. When the employee returned to work on March 29, she was told she no longer had a job.

In its decision, the Seventh Circuit noted that when an employee applies for unforeseeable leave, she/he is not required to tell the employer how much leave is needed, but is required to comply with the employer’s notice policies. The missing ingredient in this case, the employer failed to ask the employee for a set return to work day.

Employer Recommendations: Make sure you understand the intricacies of the FMLA and the DOL regulations interpreting the statute, then consistently comply with the law and regulations when administering FMLA leave for your employees. When in doubt about the duration of, or the circumstances surrounding a leave, talk to the employee. DO NOT make assumptions that could cause the law to be violated. Keep in mind, courts tend to follow a liberal construction of the FMLA, employers should therefore err in favor of the employees when administering leave polices.

It is also advisable to seek advice and counsel from an experienced employment attorney when FMLA issues arise in your workplace.