Failure to Provide Anticipated Date of Return to Work Does Not Disqualify Employee From FMLA Leave


Under the Department of Labor’s Family and Medical Leave Act rules, employees who request foreseeable FMLA leave need to provide their employers with an anticipated date of return to work. These regulations, however, do not address this requirement when the request involves an unforeseeable need for leave. Last month, the Seventh Circuit Court of Appeals concluded that failure to provide such return date in these circumstances does not disqualify the employee from leave eligibility.

In Gienapp v. Harbor Crest, the plaintiff’s adult daughter received an unanticipated cancer diagnosis, and she requested FMLA leave to provide care during treatments for the condition. When filling out the FMLA request form, the plaintiff did not include information on an anticipated date of return to work. The employer interpreted this as an indication that the employee was not planning on returning to work, and hired another employee to replace her.

The Seventh Circuit reversed a grant of summary judgment for the employer, remanding the case for trial. In its decision, the court distinguished between return notice requirements for foreseeable and unforeseeable FMLA leave. In the latter situation, the employer can require that the employee provide regular updates as to her anticipated return status, but may not deny leave based on her failure to provide such information at the outset of leave.

An employee’s inability to provide a return date in these circumstances should not be interpreted as an expression of intent not to return to work. Employers should establish an agreed-upon procedure for providing regular updates and the confirmation of a return date as soon as it can be reasonably determined.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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