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Total Articles: 15

Employee exceeding 12 weeks of FMLA leave loses right to job restoration.

According to a federal judge in Pennsylvania, employees are not entitled to the job restoration protections of the FMLA after the statutory leave has expired, even where the employee has received permission from the employer to extend that leave. Wevodau v. Commonwealth of Pennsylvania, et al, 2017 BL 1246 (MDPA, January 4, 2017).

Requiring an Employee to Return from FMLA Leave "Without Restrictions" or "Fully Healed" Is Playing with Fire

Do you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”? You pay. A lot.

Policy regarding return-to-work medical release trumps employee’s ADA and FMLA claims.

One of the questions most frequently asked by employers is whether an employee’s failure to comply with company policies regarding a return-to-work release can support termination of the individual’s employment. While courts differ on that issue depending upon judicial circuit and the specific facts of the case, the 8th U.S. Circuit Court of Appeals recently answered that question with a definitive “Yes.” Withers v. Johnson, 8th Cir., No. 13-2646, August 15, 2014.

EEOC Commissioner Gives Insight into Handling Employee Leaves of Absence After FMLA is Exhausted

Last week, I had the pleasure of co-presenting with EEOC Commissioner Chai Feldblum on the topic of “leave” as a reasonable accommodation under the ADA. Our presentation was part of an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BNA’s coverage of our presentation here. Naturally, Cmmr. Feldblum and I aren’t going to agree on everything when it comes to the ADA, since I represent employers and Cmmr. Feldblum is a sitting EEOC Commissioner. But when it comes to employer compliance with the ADA, we found much to agree on during this session.

Employee's failure to return from FMLA leave in a timely manner supports summary judgment for employer under the ADA.

In an unpublished opinion issued on October 8, 2013, the 5th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer on a claim under the Americans with Disabilities Act (ADA). The interesting – and somewhat unexpected – basis of the decision was the fact that the plaintiff/employee’s termination was based upon her failure to return from a medical leave under the Family and Medical Leave Act (FMLA) in a timely manner. Owens v. Calhoun County School District, 5th Cir., No. 12-60897, October 8, 2013.

When an Employee Returns from FMLA Leave, What Does Same or Equivalent Position Actually Mean?

Do you know what's particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!]

Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended

The Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave. Not surprisingly, I often am asked by clients, "What is an 'equivalent' position?"

FMLA does not prohibit termination of employee who abuses leave.

The FMLA permits eligible employees to take up to 12 workweeks of leave during a 12-month period if a “serious health condition . . . makes the employee unable to perform the functions of [his or her] position.” Employers are prohibited from interfering with qualified employees’ benefits or leave under the FMLA. However, the 3d U.S. Circuit Court of Appeals recently held that the FMLA does not shield an employee from discharge merely because an alleged misconduct occurred during an FMLA leave, nor does it prohibit termination of an employee who abuses the terms of an FMLA leave. Warwas v. City of Plainfield, 3d Circuit, No. 11-1736, July 25, 2012.

FMLA FAQ: When Employee on FMLA Leave Indicates They Will Not Return From FMLA Leave, What Should an Employer Do?

Here's a question from the client inquiry line this past week, and it pops up often enough that I figured I would share:

Requiring Employees to Return to Work With No Restrictions or To Be "100% Healed" is a Huge Risk for Employers

There must be something in the water. Over the past few months alone, I have reviewed a number of employers' policies and correspondence regarding an employee's return to work from a leave of absence. What has been surprising to me is the number of employer policies that require an employee to return from leave with "no restrictions" or "100% healed." Consider the following requirement, which was embedded in an employer's return to work notice at the conclusion of FMLA leave:

Employee Who Abused FMLA Leave Around the Holidays Properly Terminated

Employers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays. In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.

Plaintiff must demonstrate prejudice in order to be entitled to relief under the FMLA.

The 8th U.S. Circuit Court of Appeals has upheld an employee’s termination for job abandonment, in spite of the fact that the employee argued that he was on FMLA leave at the time of his termination. The court based that holding on the fact that the employee was unable to return to work at the conclusion of his medical leave, and that he therefore was unable to show that his termination prejudiced his rights under the FMLA.

FMLA FAQ - Can We Require an Employee to See Our Doctor Before Returning to Work?

We have an employee returning from FMLA leave due to his own serious health condition. Although the employee has provided a doctor's note stating that he is released to work "full duty," we have serious concerns about his ability to do his job without risk of injury to himself or others. Can we require him to see a doctor selected by the company?

Evidence of Misconduct Discovered During FMLA Leave May Support Employee Termination.

An employee who takes leave under the Family and Medical Leave Act (FMLA) is entitled - in most instances - to be reinstated to his or her former position, with equivalent pay and benefits, upon expiration of that leave. However, an employee is not entitled to a position or other benefit of employment to which he would not otherwise be entitled simply because he is on FMLA leave. It is on that basis that the 7th U.S. Circuit Court of Appeals upheld the termination of a company’s Vice President of Information Technology, even though the termination occurred while that individual was on an FMLA leave.

An Employee Who is Unable to Return to Work After 12 Weeks of FMLA Leave No Longer Has the Protections of That Act.

The Family and Medical Leave Act (FMLA) generally provides 12 weeks of unpaid leave during a 12-month period to an eligible employee suffering from a serious health condition. An employee who takes FMLA leave is entitled to be restored to the job he or she held at the time the leave commenced, or to an equivalent position. If, however, the employee is unable to return to work at the end of that 12-week period, he or she is no longer protected by the FMLA.
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