An employee who returns to work at the end of FMLA leave may be entitled to reinstatement, even if the employer wasn’t expecting her. In Gienapp v. Harbor Crest, No. 14-1053 (7th Cir., June 24, 2014), the employee requested leave to take care of her adult child and completed FMLA paperwork, but left blank the question about the leave’s expected duration. The employer did not follow up with the employee, but it did review the physician’s statement which stated that the employee might be needed well beyond the April 1 exhaustion of FMLA entitlement. As a result, the employer believed that the employee would not return to work at the end of her FMLA entitlement and it hired someone else to replace her. When the employee returned on March 29, she was told she no longer had a job. 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 only has to comply with the employer’s notice policies. Here, the employee complied with the employer’s policies, but there was no conclusive evidence that the employer asked for a set date for return to work.
Before making employment decisions affecting an employee within the FMLA period, follow up on whether the employee expects to return and when.