Employers that deny an employee the right to reinstatement after protectedmust make sure there’s solid proof that there was a rational reason for doing so. That’s the employer’s legal burden, not the employee’s, the 9th Circuit Court of Appeals has ruled.
As a practical matter, that means employers must show that the employee would have lost her job regardless of whether she tookleave.
Recent case: Diane Sanders worked for a municipality as a utility billing clerk for about 10 years. When the city moved her to a new office building and started using lower-grade paper to print bills, Sanders began developing medical problems. Her doctor said the reason was the chemicals present in cheap paper, as well as low air quality in the building.
Sanders took FMLA leave. Meanwhile, the city changed the paper and had the air tested. It was found to be within limits set by state and federal safety standards.
Sanders then provided a return-to-work form, which said she was cleared to work as long as she would no longer be exposed to the low-grade paper. Instead of reinstating her, the city terminated her. It said it did so because it could not be sure that the environment would remain free of contaminants.
When the case went to trial, the judge told the jury Sanders had to prove that the city did not have reasonable cause to fire her. She appealed, arguing that it was up to the city to show it did have reasonable cause to terminate her.
The 9th Circuit Court of Appeals agreed with Sanders and ordered a new trial.
It reasoned that once the employee shows she requested FMLA leave and asked to be reinstated, it was up to the employer to show she wasn’t entitled to return to work. It can do so in several ways. It could, for example, argue that the employee would have been terminated no matter what because of:
- An intervening, neutrally enforced reduction in force
- The employee’s inability to perform the essential functions of the job any longer.
But the key is that the employer must prove one of these defenses.
In this case, that meant Sanders didn’t have to prove she was able to perform her job—she just had to ask for her old job back. It was then up to the city to show she could not do the job. (Sanders v. City of Newport, No. 08-35996, 9th Cir., 2011)
Final note: Employers that want to discharge a returning employee because she can’t perform the essential functions of her job must also be prepared to show that reasonable accommodations weren’t possible because they were either impossible or would have created undue hardship for the employer. That’s because the returning employee may be disabled under the ADA and therefore entitled to reasonable accommodations for those essential functions she couldn’t perform otherwise.
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