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Labor: Employers not required to grant FMLA leave when return dates are ambiguous

Courts favor employers when employees seek ill-defined FMLA leaves

In today’s economic climate, employers are faced with many fiscal constraints, which often are exacerbated when an employee takes leave under the Family and Medical Leave Act (FMLA). While the FMLA allows for leaves lasting up to 12 weeks, employees often seek to remain out of work for much longer periods of time. Frequently, employees request FMLA leave, but fail to provide the employer with a specific return date. Recent judicial decisions by courts across the U.S. have reinforced the position that employers are not required to grant employees FMLA leave when their return dates are ill-defined.

In Henry v. United Bank, on July 13, the 1st Circuit held that an employer is not required to hold open an employee’s job indefinitely while she is on FMLA leave. The court affirmed a magistrate judge’s ruling in favor of United Bank and rejected the plaintiff’s argument that the defendant’s proffered reasons for terminating her were a pretext. In terminating the plaintiff, United Bank noted that having only two credit analysts instead of three was placing a strain on the department in which Henry had worked.

In addition, the court concluded that hiring a temporary employee to replace Henry was not a wise business decision because of the confidential nature of the client information to which credit analysts are privy and the training involved in preparing any employee for the job. In affirming the dismissal of the plaintiff’s FMLA retaliation claim, the court concluded that the plaintiff’s arguments opposing the employer’s decision to terminate her “constituted mere disagreement with her employer’s business decisions and do not display the kind of weaknesses or implausibilities that give rise to a triable question on pretext.”

Similarly, and also in July of this year, in Guethlein v. Donahoe, a magistrate judge for the U.S. District Court for the Southern District of Ohio concluded that an employer’s actions related to an employee’s failure to provide a definitive return date from FMLA leave did not constitute retaliation. In Guethlein, the plaintiff repeatedly failed to respond to letters from her employer that requested documentation related to her FMLA leave. Due to the plaintiff’s failure to respond to her employer’s letters, the defendant began to progressively discipline her. In rejecting the plaintiff’s FMLA claim, the court concluded that the defendant showed a legitimate need to verify that the plaintiff was entitled to extended FMLA leave. The court refused to second-guess the defendant’s business decision to seek information concerning the plaintiff’s FMLA leave.

Likewise, in Harris v. Proviso Area For Exceptional Children, the U.S. District Court for the Northern District of Illinois held that a plaintiff is not entitled to open-ended FMLA leave. While not as recent as those issues in the Henry and Guethlein cases, Harris, too, illustrates the point that indefinite leave is not something that employers need to tolerate. In that case, the plaintiff, a permanent substitute teacher, missed the first 14 days of the school year and was instructed either to return to work or to submit a doctor’s note explaining her absence. In response, the plaintiff requested sick leave without identifying a date by which she expected to resume teaching. She subsequently took sick leave for the remainder of the school year, after which the defendant informed the plaintiff that her employment contract would not be renewed. In rejecting her claim for retaliation under the FMLA, the court noted that the plaintiff’s employment was terminated because she was absent from work the previous year. The court then concluded that the defendant was entitled to summary judgment because the “FMLA does not protect a worker who needs a leave of indefinite duration from adverse action.”

Today, the challenges faced by employers operating with reduced budgets are compounded when an employee is out on leave. While employees are lawfully entitled to take up to 12 weeks of FMLA leave, employers are well within their rights to refuse indefinite leave requests and to terminate employees who fail to provide the information employers rightly need to assess whether a leave of absence is justified. 

Contributing Author

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Richard Glovsky

Richard D. Glovsky is a partner and nationally recognized trial lawyer and employment law attorney with Edwards Wildman Palmer LLP. He can be reached at...

Additional Contributors: Eric Mack

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