Under the Family Medical Leave Act (FMLA), whether an employee is required to specify the expected duration of leave on a FMLA application depends on whether the leave is categorized as foreseeable or unforeseeable leave. If the FMLA application is for foreseeable leave, the FMLA regulations require that the employee specify the expected duration of the leave on the application. To the contrary, FMLA applications for unforeseeable leave do not require employees to tell employers how much leave they need—if they are unsure of the expected duration. Instead, the FMLA regulations instruct employees to comply with the employer’s policies. For example, employers may implement policies that require updated estimates about how long leave will last. But what happens when an employee cannot provide an expected duration for the unforeseeable leave and the employer wants to replace the employee?

This issue was recently addressed by the Seventh Circuit Court of Appeals in Gienapp v. Harbor Crest, 2014 U.S. App. LEXIS 12183 (7th Cir. June 24, 2014). In Gienapp, the employee notified the company that she needed time off to care for her daughter who was undergoing treatment for thyroid cancer. Subsequently, the employer granted the employee twelve weeks of FMLA leave which was set to expire on April 1, 2011. While on leave, the employee mailed in a FMLA application, leaving blank a question about the leave’s expected duration. The company did not ask the employee to fill in the blank on the application, nor did it pose written questions as the twelve week period progressed. Further, the company had a policy that required the employee to call in monthly during her leave with updates. The company conceded that the employee followed this policy. A doctor’s statement on the FMLA application said that the daughter’s recovery was uncertain, and that if she did recover she would require assistance at least through July 2011. The company inferred from this that the employee would not return by April 1, her leave’s outer limit. Midway through the employee’s leave, the employer replaced her. When the employee reported to work a day before her leave was due to expire, the employer told her that she no longer had a job.

The court found that the employer’s actions were in violation of the FMLA. The court explained that because her daughter’s status was changeable, the leave was unforeseeable and the employee could not have given an expected return date when she initially requested the leave. The court stated:

What seems to have happened instead is that [the company] 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 [the employee’s] absence from work, even though these are logically distinct.

Because the company had a policy which required the employee to call in with monthly updates, the court held that the company “could and should have asked” about the employee’s expected return to work date during the monthly calls. However, if the employee was still uncertain of her return to work date at the time of the monthly calls, the company was still required to hold her job open until the expiration of her twelve week FMLA entitlement. As such, terminating the employee prior to the expiration of her twelve week FMLA entitlement was unlawful.

Employer Lessons:

  • If an employee cannot provide an expected return to work date for unforeseeable leave, an employer should wait until the employee’s twelve weeks of FMLA leave expires before replacing the employee.
  • Employers should include language in their FMLA policy requiring employees to provide written periodic updates regarding their expected duration of leave if the leave is unforeseeable and they cannot specify a return to work date on the FMLA application.
  • Although not at issue in Gienapp, employers should be mindful of their obligations under the Americans with Disabilities Act (ADA) regarding leave as an accommodation after the expiration of an employee’s FMLA leave for their own serious health condition. (For further information on leave as an accommodation under the ADA, see our previous blog post here).