• The FMLA and Unforeseeable Leave
  • October 28, 2014 | Author: Ryan A. Haas
  • Law Firm: Chuhak & Tecson, P.C. - Chicago Office
  • Some thorny questions can arise when determining an employee’s rights under the Family and Medical Leave Act (“FMLA”), especially when the leave is deemed “unforeseeable.” For instance, in a recent Seventh Circuit decision, the Court held that a former employee of a nursing home did not give up her FMLA rights despite not providing an anticipated return to work date from leave to care for her adult daughter because her leave was unforeseeable.

    In Gienapp v. Harbor Crest,756 F.3d 527 (7th Cir. 2014), the Court reversed the lower court decision and held that the FMLA does not require employees who take leave under the Act to specify how much leave time they will need, if they do not know yet how much time they will need. The former employee had submitted a request for FMLA to her employer without identifying an anticipated date she would return to work. The employer later received a doctor’s note stating that uncertainty as to when the employee would be returning to work. Rather than treat the leave as “unforeseeable” and keep the employee’s position open, the employer took the note to mean that the employee would not return before the 12 work weeks she was entitled to under the FMLA and hired a replacement. When the employee attempted to return to work, she was told she no longer had a job.

    The Seventh Circuit held that the employer violated the FMLA because the employee’s leave was “unforeseeable” and that the employer interfered with her FMLA rights. The Court also held that the former employee was entitled to FMLA leave to care for her daughter even though she was an emancipated married adult and that some of the leave was used to care for grandchildren.

    Employers should tread carefully when handling requests for leave from employees. Any doubts about leave requests or reinstatement rights should be resolved by a consultation with an employment attorney.