FMLA: Employers Have Burden of Proof to Justify Failure to Reinstate Employees Returning from FMLA Leave


The Family and Medical Leave Act (FMLA) is, in some respects, a strict liability statute. Employees returning from FMLA leave are entitled to reinstatement with very few exceptions. In an opinion issued March 17, 2011, the U.S. Court of Appeals for the 9th Circuit1 underscored this liability by holding that employers have the burden of proof to justify failure to reinstate an employee returning from FMLA leave. Sanders v. City of Newport.


Diane Sanders, who worked as a billing clerk for the City of Newport, Ore., took an extended leave under the FMLA because she was experiencing illness due to what her doctor diagnosed as chemical sensitivity issues related to the type of paper the city was using in its offices. After several weeks, Sanders’ doctor cleared her to return, subject to the condition that she would not be exposed to the same type of paper. Although the city had stopped using the particular paper involved, it denied Sanders reinstatement because it said it could not guarantee that her workplace would be safe with respect to her chemical sensitivity illnesses.

Sanders filed suit alleging, among other things, interference with her FMLA reinstatement rights. The city contended that the jury should be instructed that Sanders had to prove that the city lacked reasonable cause to reinstate her. Taking the opposite view, Sanders contended that the burden of proof was on the city to show a justifiable reason for not reinstating her. The district court agreed with the city and adopted the city’s proposed jury instruction. The jury found in favor of the city on Sanders’ FMLA interference claim.

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