Employers Must Prove A Lawful Reason For Denying Reinstatement After FMLA Leave

On March 17, 2011, California's Ninth Circuit Court of Appeals ruled that the employer has the burden of proving it had a legitimate reason for not reinstating an employee to her former position following FMLA leave. The employee is not required to prove that her employer lacked a reasonable basis for its refusal.|

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The Family & Medical Leave Act (FMLA) and California Family Rights Act (CFRA) allow employees to take up to 12 weeks of job protected leave for a qualifying reason and to return to the same or an equivalent position at the end of the leave. Interference with Family & Medical Leave Act rights can land you in a lawsuit that may be tough to defend. On March 17, 2011, California's Ninth Circuit Court of Appeals ruled that the employer has the burden of proving it had a legitimate reason for not reinstating an employee to her former position following FMLA leave. The employee is not required to prove that her employer lacked a reasonable basis for its refusal. Ms. Sanders worked as a utility billing clerk for the City of Newport, Oregon for 10 years. After the City started to use a different type of billing paper, she began to suffer health problems. A specialist diagnosed multiple-chemical sensitivity that was triggered by handling the new billing paper. Sanders requested and received FMLA leave. The City properly notified her that she needed to preent a fitness-for-duty certificate from her doctor "prior to being restored to employment." Sander's doctor cleared her to return with the sole restriction to avoid the billing paper, which the City had already stopped using during her leave. Yet, the City fired her, alleging that "it could not guarantee her workplace would be safe for her due to her chemical sensitivity." She sued alleging interference with her Family & Medical Leave Act right to reinstatement. The case went to trial and the jury was instructed that Sanders must prove that "she was denied reinstatement or discharged from employment without reasonable cause after she took FMLA leave." The jury sided with the City, and Sanders appealed, arguing that the jury instructions were wrong. The appellate court agreed, emphasizing that to prove a Family & Medical Leave Act interference claim, the "employee must only establish that (a) her employer was governed by the Family & Medical Leave Act, (b) she met the eligibility requirements, (c) she provided sufficient notice of intent to take leave, and (d) the employer denied her Family & Medical Leave Act benefits to which she was entitled. Evidence that an employer failed to reinstate her "to her original (or an equivalent) position establishes a prima facie denial of the employee's rights under the Family & Medical Leave Act." In California, the right to reinstatement is even stronger, as the California Family Rights Act mandates "the employer shall guarantee that the employee is reinstated to the same or comparable position unless it is legally excused from doing so." California Family Rights Act leave "shall not be deemed to be granted unless the employer provides the (written) guarantee." (Govt. Code §12945.2(a)). A California Family Rights Act "comparable position" means "virtually identical to the employee's original position in pay, benefits, working conditions, privileges, and status." This includes responsibilities and authority. Under the California Family Rights Act, you can only require a "fitness for duty statement" to return to work if you have a "uniformly applied practice of requiring such a release from other employees as a condition of returning to work following illness, injury, or disability." The right of reinstament is not aboslute. Under the Family & Medical Leave Acts and California Family Rights Act regulations, if an employee is unable to perform an essential job function because of a physical or mental condition, the Family & Medical Leave Act does not mandate a return to work. But remember: an employee who takes leave for a "serious health condition" is also likely to meet the definition of "disability" under California's Fair Employment & Housing Act (FEHA) and the expanded Federal Law. Before refusing reinstatement you must always conduct an interactive process to determine whether the employee can return to work with a reasonable accomodation. And finally, if the employee has exhausted all available FMLA/CFRA leave and job modifications are not reasonable, you must consider whether a leave of absence for a finite and reasonable period of time — as a resonable accommodation — would serve to allow the employee to recover sufficiently to return to work, with or without work restrictions. Authors Patricia S. Eyres collaborated with Stu Baron in writing this article. Stu is both President of Workers’ Compensation Claims Control and a principal in the law firm of Stuart Baron & Associates. This article is an excerpt from the May 2011 edition of From The Hotline published by Stuart Baron & Associates and Workers' Compensation Claims Control. It is used with permission under the copyright of Stuart Baron & Associates.

Patricia Eyres

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Patricia Eyres

Patricia S. Eyres ("Patti") calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits.

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