If you take FMLA leave from work, are you required to tell your employer when you expect to return? Yes, FMLA regulations require that an employee specify the expected duration of the leave on the application. But what if you have no way of knowing how much time you will need? Those same regulations do not require employees whose needs are unforeseeable to tell employers how much leave they will need, but they are required to comply with the employer's policies. Ok, so what if your employer wants to replace you because your return date is not specified. What then?
A recent case clarified this issue. Suzan Gienapp worked at Harbor Crest, a residential nursing facility in Fulton, Illinois. In January 2011 she told her manager that she needed time off to care for her daughter who was undergoing treatment for thyroid cancer. She was granted leave under the FMLA. While on leave, Gienapp mailed in a FMLA form, leaving blank a question about the expected leave's duration.
Harbor Crest did not ask her to fill in the blank or ask her when she expected to return. A doctor's statement on the form said that the daughter's recovery was uncertain, and that if she did recover she would require assistance at least through July 2011. Harbor Crest assumed that Gienapp would not return by April 1, her leave's outer limit, and hired someone else to replace her in February. Gienapp reported for work on March 29, but was told she no longer had a job. She sued, and her case was thrown out by the district court.
The Seventh Circuit Court of Appeals reversed the lower court. The court found that the employer's actions were in violation of the FMLA. The court explained that because her daughter's status was changeable, the leave was unforeseeable and the employee could not have given an expected return date when she initially requested the leave.
Because the company had a policy which required the employee to call in with monthly updates, the court held that the company "could and should have asked" about the employee's expected return to work date during the monthly calls. However, if the employee was still uncertain of her return to work date at the time of the monthly calls, the company was still required to hold her job open until the expiration of her twelve week FMLA entitlement. As such, terminating the employee prior to the expiration of her twelve week FMLA entitlement was unlawful.
It was also determinative that Gienapp complied with her employer's policies by calling in monthly with status reports. Harbor Crest apparently did not ask for any additional information during those calls. Therefore, according to the court, Harbor Crest is not entitled to win on a theory that Gienapp failed to provide essential information. According to the court, "What seems to have happened instead is that [the company] drew an unwarranted inference from the physician's statement in the original form and confused the anticipated duration of the daughter's need for care with the anticipated duration of [the employee's] absence from work, even though these are logically distinct."
The takeaway? If you are taking FMLA leave, be sure to fill out the required forms accurately, but if you are unsure how much time you will need, leave that line blank. However, be sure to comply with your employer's policies with regard to updating HR with your status, and if you are submitting statements from your doctors, be sure to distinguish the opinions of your doctors from your own predictions of when you will return to work.