Right to FMLA Leave Not Forfeited Based on Failure to Provide Anticipated Duration

Posted on July 25, 2014

If an employee properly requests FMLA leave, but fails to advise her employer of how long she plans to be out, is the employer obligated to hold the position open? Late last month, the Seventh Circuit decided that yes, in a situation involving unforeseeable leave, the employer is still obligated to allow the employee to come back to work, provided she has not used more than 12 weeks of leave, despite her failure to provide information regarding the duration of her leave. See Gienapp v. Harbor Crest, et al., No. 14-1053 (7th Cir. June 24, 2014).

In January of 2011, Suzan Gienapp, an employee of Harbor Crest nursing care facility, advised her manager that she needed time off to care for her daughter who was undergoing treatment for thyroid cancer. The manager granted Gienapp FMLA leave. While Gienapp was out on leave, she mailed in her FMLA form, but left blank the question about the expected duration of her leave. Following receipt of this form, Harbor Crest did not ask Gienapp to fill in that portion of the form or ask for her to provide any information in writing regarding the duration of her leave as the leave progressed. There was a statement from a physician on the form saying that the daughter’s recovery was uncertain and if she did recover, she would need assistance through at least July 2011. Gienapp’s manager apparently inferred from this that she would not return by the outer limit of her leave (April 2011) and so hired someone else. Gienapp tried to return to work on March 29 and was told she no longer had a job.

She filed a lawsuit and the employer contended that she had forfeited her FMLA rights by failing to provide it with the expected duration of her leave. The district court granted summary judgment to the defendants on this basis.

The Seventh Circuit disagreed that the employer was entitled to summary judgment. As the Seventh Circuit pointed out, foreseeable leave is governed by 29 C.F.R. § 825.302(c). Gienapp, No. 14-1053, p. 3. This regulation directs employees to tell employers how much leave they need and states that an employer must inquire further if the employee’s statement is inadequate. Id. But the section dealing with unforeseeable leave (29 C.F.R. § 825.303) does not require employees to tell employers how much leave they need if they do not yet know themselves. Instead, employers are permitted to require updated estimates about how long leave might last. Id. at 4. In this case, Harbor Crest told Gienapp to call in monthly and she did. There was no indication before the court that Harbor Crest asked for any other information in these calls, and so, the Seventh Circuit concludes, it must assume that she complied with the policies. Id. “What seems to have happened instead is that [Gienapp’s manager] 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 Gienapp’s absence from work, even though these are logically distinct.” Id. Therefore, “Harbor Crest is not entitled to summary judgment on a theory that Gienapp failed to provide essential information.” Id.

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