FMLA Leave Requests: Do Employees Need to Specify the Expected Duration of Leave?

by Obermayer Rebmann Maxwell & Hippel LLP

Under the Family Medical Leave Act (FMLA), whether an employee is required to specify the expected duration of leave on a FMLA application depends on whether the leave is categorized as foreseeable or unforeseeable leave. If the FMLA application is for foreseeable leave, the FMLA regulations require that the employee specify the expected duration of the leave on the application. To the contrary, FMLA applications for unforeseeable leave do not require employees to tell employers how much leave they need—if they are unsure of the expected duration. Instead, the FMLA regulations instruct employees to comply with the employer’s policies. For example, employers may implement policies that require updated estimates about how long leave will last. But what happens when an employee cannot provide an expected duration for the unforeseeable leave and the employer wants to replace the employee?

This issue was recently addressed by the Seventh Circuit Court of Appeals in Gienapp v. Harbor Crest, 2014 U.S. App. LEXIS 12183 (7th Cir. June 24, 2014). In Gienapp, the employee notified the company that she needed time off to care for her daughter who was undergoing treatment for thyroid cancer. Subsequently, the employer granted the employee twelve weeks of FMLA leave which was set to expire on April 1, 2011. While on leave, the employee mailed in a FMLA application, leaving blank a question about the leave’s expected duration. The company did not ask the employee to fill in the blank on the application, nor did it pose written questions as the twelve week period progressed. Further, the company had a policy that required the employee to call in monthly during her leave with updates. The company conceded that the employee followed this policy. A doctor’s statement on the FMLA application said that the daughter’s recovery was uncertain, and that if she did recover she would require assistance at least through July 2011. The company inferred from this that the employee would not return by April 1, her leave’s outer limit. Midway through the employee’s leave, the employer replaced her. When the employee reported to work a day before her leave was due to expire, the employer told her that she no longer had a job.

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. The court stated:

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.

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.

Employer Lessons:

  • If an employee cannot provide an expected return to work date for unforeseeable leave, an employer should wait until the employee’s twelve weeks of FMLA leave expires before replacing the employee.
  • Employers should include language in their FMLA policy requiring employees to provide written periodic updates regarding their expected duration of leave if the leave is unforeseeable and they cannot specify a return to work date on the FMLA application.
  • Although not at issue in Gienapp, employers should be mindful of their obligations under the Americans with Disabilities Act (ADA) regarding leave as an accommodation after the expiration of an employee’s FMLA leave for their own serious health condition. (For further information on leave as an accommodation under the ADA, see our previous blog post here).


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.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

Written by:

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.