There are many reasons why companies should carefully scrutinize whether it is permissible to terminate an employee who is on or returning from Family and Medical Leave Act (“FMLA”) leave. Here is one more. The Ninth Circuit ruled in an issue of first impression that the employer bears the burden of proof when it alleges that it had a legitimate reason to not reinstate an employee following the conclusion of the employee’s FMLA leave.
In Sanders v. City of Newport, a utility billing clerk sued the City of Newport when it refused to reinstate her following the conclusion of her FMLA leave. The employee took FMLA leave when she had a medical reaction triggered by handling low-grade paper and the alleged poor air quality in her work area. The City denied reinstatement to the employee because she could only return to work if she avoided exposure to the low-grade paper that was causing the chemical reaction. While the City had stopped using the low-grade paper during the time the employee was on FMLA leave, the City stated it could not guarantee that the workplace would be safe for her, given her chemical sensitivity. Following trial, the jury was instructed that the employee had to prove that she was denied reinstatement or discharged from employment without reasonable cause after she took family medical leave. The jury then returned its verdict in favor of the City. However, since the court’s instructions to the jury misstated the burden, the decision in favor of the employer for the FMLA claim was vacated by the Ninth Circuit and the case was remanded for a new trial.
The Family and Medical Leave Act provides eligible employees with up to 12 workweeks (and in some circumstances 26 workweeks) of unpaid leave for certain family and medical reasons during a 12-month period. Upon concluding FMLA leave, an employee has the right to return to his or her job or an equivalent job. However, there are limits to this right. An employee is entitled to reinstatement only if he or she would have continued to be employed had FMLA leave not been taken. In other words, an employee is entitled to any right, benefit or position that he or she would have been entitled to had the employee not taken leave. Thus, an employee is typically not entitled to reinstatement if, because of a layoff, reduction in force or other reason, the employee would not be employed at the time job restoration is sought.
The circuit courts have disagreed as to which party bears the burden or proof when an employer defends against an interference claim by asserting one of the limitations discussed above. As discussed in Sanders, the Eighth, Tenth and Eleventh Circuits have also reached the same conclusion as the Ninth Circuit; whereas, the Seventh Circuit has held that the burden of proof remains with the employee.
In all cases, it is worth bearing in mind that companies cannot terminate an employee because he or she has taken or will be taking leave. Another important consideration is that an employee who has exhausted his or her FMLA leave may be eligible for an ADA accommodation to return to work. Therefore, if an employee has exhausted his or her FMLA leave for a serious health condition and cannot return to work immediately or requires a reasonable accommodation to return, companies should engage in the interactive process to determine what sort of accommodations are available.