Employees who take
But if employers grant that additional leave, they don’t have to reinstate the employee to the same or an equivalent position when she returns.
Recent case: Carrie Reeves, who suffers from depression and a seizure disorder, had to take all her leave plus additional weeks off under Case Western Reserve University’s leave-of-absence policy. The university made it clear Reeves could have the additional leave and continue to receive health insurance coverage, but that reinstatement to her former job or the equivalent was not guaranteed.
When Reeves returned and was assigned to a different job, she sued, alleging her rights to reinstatement under the FMLA had been violated.
The court tossed out her case. It said she had already used her FMLA entitlement and Case Western didn’t have to extend the reinstatement guarantee just because it had a policy giving employees more leave than the FMLA mandates. (Reeves v. Case Western Reserve University, No. 1:07-CV-1860, ND OH, 2009)
Advice: Remember to count the first 12 weeks off as FMLA leave even if the employee is using paid leave—and let her know that’s what you are doing. Otherwise, you may owe an additional 12 weeks of time off and guaranteed reinstatement after the employee has used all other leave.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- All periods of employment count toward FMLA eligibility
- Require strict compliance with FMLA certification rules
- Worker not returning from FMLA leave? Terminate, but pay benefits for full 12 weeks
- Consider uniform, ADEA-compliant severance and rights-waiver releases--even if age isn't factor