Employees Have No Absolute Right To Return To Work Following FMLA Leave

The Family and Medical Leave Act (“FMLA”) is federal legislation that gives certain covered employees the right to take unpaid leaves of absence in certain circumstances, including leave for an employee’s own serious health condition. Employees who qualify for FMLA leave may take up to twelve (12) weeks of unpaid leave during any designated 12-month period. Additionally, the FMLA is intended to provide certain return to work protection for an employee who needs to take FMLA leave. However, there are limits to this protection and it is now clear that the protection is not guaranteed.

On April 27, 2006, the federal Fourth Circuit Court of Appeals ruled in the case of Yashenko v. Harrah’s NC Casino Company LLC (“Yashenko”), that an employee desiring to return to work after completing FMLA leave has no absolute right to do so. The Court went on to determine that the decision of the employer to deny reinstatement to the complaining employee was proper under the specific circumstances presented.

In Yashenko, the Defendant managed the gaming enterprise for the Eastern Band of the Cherokee Indians. Mr. Yashenko was employed by Defendant as Manager of Employee Relations. During each of the years 2000, 2001 and 2002, Mr. Yashenko took medical leaves of absence, most of which were taken as FMLA leave. In May 2003, he requested medical leave again due to a serious health condition resulting from problems related to heart surgery. Defendant approved his request for FMLA leave.

While Mr. Yashenko was on his FMLA leave in 2003, Defendant underwent a reorganization, which had the effect of eliminating Mr. Yashenko’s position. Defendant informed Mr. Yashenko of the job elimination and encouraged him to apply for other available positions. Mr. Yashenko declined, saying that he did not feel up to it due to the medication he was taking and his doctors’ recommendations against it.

On July 21, 2003, Mr. Yashenko completed his FMLA leave and sought to return to work. But upon his return, Defendant fired him. Mr. Yashenko then filed suit against his employer in federal court claiming a violation of his right to reinstatement under the FMLA. He also claimed that he was retaliated against for engaging in the protected activity of taking FMLA leave.

First, the court discussed Mr. Yashenko’s claim that the FMLA establishes an automatic right to job reinstatement following leave. The language in one part of the FMLA says that on return from FMLA leave, an employee is “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” Mr. Yashenko argued that the words “to be restored” from this section of the FMLA is plain language sending a clear message that mandates job restoration.

Addressing Mr. Yashenko’s argument, the court examined another provision of the FMLA and the regulations established by the Secretary of Labor interpreting the Act. For instance, the court noted that 29 USC § 2614(a)(3)(B) provides that “nothing in this section shall be construed to entitle any restored employee to. . .any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave.” The court found that the regulation interpreting this provision makes clear that an employee has “no greater right to reinstatement” than if the employee had been continuously employed during the FMLA leave period.

Furthermore, the court determined that “an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration of employment.” As such, the court concluded that notwithstanding Mr. Yashenko’s assertions otherwise, the right of reinstatement is not automatic following FMLA leave. The court’s decision is in line with the decisions of four other federal Circuit Courts of Appeal (i.e., the 3rd, 6th, 8th and 11th Circuits).

Mr. Yashenko also challenged Defendant’s decision to reorganize and deny him re-employment. He claimed that the alleged reasons for Defendant’s action was not legitimate and interfered with his FMLA rights, and that Defendant retaliated against him for exercising his protected right to take such leave. In regard to this claim, the court noted three main facts: (1) It was undisputed by the parties that before Mr. Yashenko’s most recent FMLA leave, the finance department had suggested a reorganization that would eliminate Mr. Yashenko’s position; (2) There had already been three restructurings involving the elimination of at least 12 other positions; and (3) Defendant continued to provide Mr. Yashenko with continued benefits until his FMLA leave was completed and offered him the chance to interview for other positions. Based on the foregoing facts, the court held that Defendant did not interfere with Mr. Yashenko’s FMLA rights and that, with respect to the retaliation claim, Mr. Yashenko did not carry his burden of proof to overcome the legitimate non-discriminatory reasons offered by defendant for its action.

The Yashenko decision provides some cover to employers in cases where the employer legitimately would have fired the employee had the employee not taken FMLA leave. One example the court gave is where an employer is planning to fire a poor performing employee but before it can do so, the employee takes FMLA leave. Another example is when the employer eliminates an entire branch of a business, which includes the position of the employee on FMLA leave.

It is very important to note that each case will be judged on its facts. If an employer is simply refusing reinstatement to an employee returning from FMLA leave for a fabricated reason, or worse yet, because the employer is upset that the employee has taken FMLA leave, the Yashenko decision will be no help to the employer. Therefore, employers must be certain that their decision to terminate an employee is the same decision they would have made had the employee not taken FMLA leave. They must also examine any documents or other records that could support (or undermine) that assertion, with specific emphasis on the timing of such records/action vs. when the employee first requested or went out on FMLA leave. Finally, employers must consider all surrounding circumstances to be sure that the decision is not misperceived and thereby ruled to be a violation of the employee’s FMLA rights.

© 2009 Parsonage Vandenack Williams LLC 

 For more information, contact info@pvwlaw.com

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