iThe United States Seventh Circuit Court of Appeals recently decided against an employer for terminating an employee who failed to provide an expected return date for FMLA leave. Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014). This decision serves as an important reminder that employers must positively confirm an employee's expected return date before hiring a replacement. Failure to do so may subject the employer to liability under the Family Medical Leave Act (FMLA).
Suzan Gienapp (Gienapp) was an employee of Harbor Crest residential nursing home in Fulton, Illinois. When her daughter was diagnosed with thyroid cancer in January 2011, Gienapp requested leave under the FMLA. Harbor Crest's top manager Myra Chattic (Chattic) provided an FMLA leave request form to Gienapp. Gienapp completed and returned the form to Harbor Crest while she was on leave. Gienapp failed to answer the critical question regarding the expected duration of the leave, leaving that answer blank.
Gienapp herself was uncertain as to the duration of the leave. Her daughter's status was changeable. One of the daughter's physicians stated that the daughter's recovery was uncertain and if she did recover, she would require assistance through at least July 2011.
Chattic continued to orally request an expected return date from Gienapp. When Gienapp informed Chattic that her daughter would require care through at least July 2011, Chattic inferred that Gienapp would not return within the 12 week leave period. The FMLA provides that the employer may only replace the employee if and when the employee positively states that they will not return to work within 12 weeks or the employee fails to return within 12 weeks.
Gienapp also told Chattic she was primarily watching her grandchildren. Based on this information, Chattic hired someone else to replace Gienapp in mid-February 2011. When Gienapp reported to work on March 29, 2011, Chattic informed her that she no longer had a job.
Gienapp filed suit alleging Harbor Crest violated the FMLA in terminating her employment. Harbor Crest moved for summary judgment, arguing: Gienapp forfeited her rights under FMLA by failing to follow its procedures for reporting FMLA leave and was not entitled to FMLA leave to watch her grandchildren.
The court ruled that Gienapp's situation was "unforeseeable leave." See 29 C.F.R. § 825.303. Her daughter could have died sooner than 12 weeks which would have permitted Gienapp to return to work within the time frame permitted for FMLA leave. Alternatively, the daughter could have lived longer than 12 weeks, but still have required care (thankfully she did, and her cancer is in remission). See Gienapp, 756 F.3d at 529.
"Unforeseeable leave" is defined by the Department of Labor regulation 29 C.F.R. § 825.303. When an employee is in an "unforeseeable leave" situation, they are not required to tell their employer exactly how much leave time they need if they do not know themselves. Id. However, the employee must still comply with the employers' policies. See 29 C.F.R. § 825.303(c). For example, employers may require updated estimates about how long the employee's leave will last.
The court held that Gienapp was not obligated to provide Harbor Crest a return to work date because she herself did not know what that date might be. Therefore, she did not forfeit her rights under FMLA by failing to fill in the blank question on the FMLA request form or failing to provide Chattic a true return to work date. The court found that Chattic had wrongfully inferred that Gienapp would not, in fact, return to work before July 2011. Harbor Crest's subsequent decision to replace Gienapp did violate the FMLA.
The court also held that the record did not support Harbor Crest's argument that Gienapp was not entitled FMLA leave to watch her grandchildren. The FMLA only permits an employee to take leave to care for a "spouse, son, daughter or parent." See 29 U.S.C. § 2612 (a)(1)(C). The court ruled that "a combination of assistance to one's daughter, plus care of grandchildren that could take a load off the daughter's mind and feet" is "care" under the FMLA. Gienapp, 756 F.3d at 532. While the record clearly showed Gienapp caredprimarily for her grandchildren, she did spend some time caring for her daughter. In order to prevail on its argument, Harbor Crest would have to show that Gienapp cared exclusively for her grandchildren during her requested leave – something it could not prove in this case. The court ultimately held that Gienapp, not Harbor Crest, was entitled to summary judgment and remanded the case to the district court with instructions to craft an appropriate remedy.
This case serves as an important reminder to employers with employees requesting FMLA leave or already on FMLA leave. Employers must make sure that employees who request FMLA leave clearly indicate their expected return to work date. If the employee does not or cannot know their exact return to work date, the employer must continue to request updated expected return to work dates. The employer may only replace the employee if and when the employee positively states that they will not return to work within 12 weeks or the employee fails to return within 12 weeks.
