The Continuing Complexity of the FMLA’s Return-to-Work Rules: What Employers Need to Know

The Family and Medical Leave Act (“FMLA”) is federal legislation that gives eligible employees the right to take unpaid leaves of absence, including leave for an employee’s own serious health condition.  Employees who qualify for FMLA leave may take up to twelve (12) weeks of unpaid leave during any designated 12-month period.  Upon return to work, an employee is “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” However, based on the particular circumstances of each case, various federal circuit courts (i.e. the 3^rd, 4^th, 5th, 6^th, 7^th, 8^th, 9^th, and 11^th circuits) have ruled that these rights are not guaranteed.

For example, the federal Fourth Circuit of Appeals rejected a former employee’s FMLA claims following the employer’s reorganization, which resulted in job cuts.  The employee was given the opportunity to apply for other available positions, but declined to do so based on his doctors’ recommendation, and was terminated. The court underscored the provision in the FMLA that states an employee “has no greater right to reinstatement” than if the employee had been continuously employed during the FMLA leave period.  However, the burden is on the employer to show that an employee would not otherwise have been employed at the time of reinstatement; it is critical for employers to maintain thorough documentation and justification for its decisions.

In another case, an employee who requested an accommodation to work on a reduced schedule, but failed to present medical documentation, claimed retaliation for taking FMLA leave.  The employer offered the employee assistance in applying for other company positions that fit her schedule, but the employee continued to not show up to work. The employer attempted to call and also sent a letter notifying the employee that her continued absence would  be considered a resignation.  The court rejected the employee’s claim of FMLA retaliation, and held that the employer was justified in terminating her after she continued to fail to report to work.

Employees who have an alleged disability under the ADA may be entitled to a reasonable accommodation, in addition to FMLA leave. In California, a jury awarded an employee $4.5 million in damages after her request for additional leave for mental health reasons was rejected.  The employer terminated the employee for failing to return from medical leave for a broken arm, but the court found that the employee’s mental condition was a qualifying disability, and that she should have been granted an extended leave of absence as a reasonable accommodation.  Employers must consistently document their good faith efforts to reasonably accommodate an employee and their disability to stave off claims that the real motive for employment decisions is a pretext for what is actually alleged discrimination.

In a 2017 Sixth Circuit case, a teacher who had knee surgery filed both an FMLA claim and an ADA discrimination claim after her medical treatment extended beyond her FMLA leave.  The employer offered the employee a different position, which she declined. The employee requested various accommodations, and the employer offered to allow her to use a wheelchair.  The employee rejected this accommodation, and was terminated for not returning to work.  The court reasoned that the employer did not discriminate under the ADA because reasonable accommodations were offered, but rejected.  Likewise, the employer was not liable under either a retaliation or interference claim under the FMLA because the employer offered the employee equivalent employment.

Here in Nebraska, an employee of Metropolitan Utilities District (“MUD”) whose absences would have been approved under the FMLA, was denied a promotion to a supervisory position and sued for retaliation. Company records showed that the employee’s absences were not related to her FMLA-qualifying condition but were coded only as sick days. As a result, because the employee did not apply for or designate her absences as being under the FMLA, the court held that MUD could not be found to have retaliated, even where the employee would have qualified for FMLA leave.

However, employers are not always successful in defeating FMLA and ADA claims. Recently, a federal district court in Vermont allowed a case to go to trial after an employee with epilepsy raised factual issues about the reasons for her termination.  Before getting a new supervisor, the employee received two promotions and two pay raises, and the employer agreed that she could perform her essential job duties. The employee in the case then suffered three seizures in one day and alerted her new supervisor that she would need to take intermittent FMLA leave. Two months later, the employee was placed on a performance improvement plan, even though the new supervisor did not document any issues with her performance. The employee suffered additional seizures; when she returned to work, she was assigned new responsibilities that included driving, which her epilepsy prevented her from doing.  The court ruled that a jury would need to determine whether the employer terminated the employee for performance reasons, or if she was terminated due to her medical condition.

Most recently, the Massachusetts Supreme Judicial Court upheld a $2 million  jury verdict in favor of an employee who was fired for taking a vacation while on approved FMLA leave to recover from surgery. The employer launched an investigation into the vacation, and ultimately terminated the employee for misrepresenting the seriousness of the medical condition.  The court held that vacations while on FMLA leave may be permitted, and that an employer’s defense based on a mistake that the employee had misused FMLA leave may not prevail, even if based on an honest belief.  Employers should take great care when they “consider the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery.”

Due to the variety of claims and fact specific determinations in each case, understanding how to best navigate the rules under the FMLA and ADA can be challenging for an employer. In a rare occurrence, the Department of Labor (DOL) recently solicited feedback on potential changes to the FMLA regulations in hopes of better protecting workers and reducing administrative burdens and gray areas for employers. New regulations could provide clearer guidance for employers in a myriad of areas to ensure they are complaint with the FMLA.