If you provide more than 12 weeks of disability leave, make sure that your employee handbook and policies spell out that employees may lose the right to return to their previous positions if they exceed the 12 weeks of unpaid leave guaranteed by the
Send a reminder to everyone out on extended leave before 12 weeks are up.
Recent case: When Jennifer DeMarco experienced pregnancy complications, she took six months off under her employer’s disability leave. The handbook said employees who take more than 12 weeks off aren’t guaranteed a job. While DeMarco was on leave, her company bought out a competitor and consolidated its operations. In the process, it eliminated DeMarco’s job.
DeMarco sued, alleging she was entitled to reinstatement since she had taken .
The court tossed out her case, saying the employer had clearly explained the rules—and that the FMLA didn’t require reinstatement. It said the case might have been different if the company had somehow promised reinstatement to those who took lengthy disability leaves. (DeMarco v. Coopervision, No. 06-CV-6187, WD NY, 2009)
Final note: Employees who are disabled may be entitled to the additional leave as a reasonable accommodation, as well as reinstatement. In this case, the court said DeMarco offered no evidence she had been disabled. Although she had experienced pregnancy complications, she testified that she had been able to care for herself with minor help. That didn’t amount to a disability.
- Don't fear lawsuit after mere lateral transfer
- You can terminate after FMLA leave--if you made the decision before leave was requested
- Can Notes on a Napkin Leave an Age Discrimination Paper Trail?
- How to make medical inquiries the legally safe way
- Are government workers protected against bias based on marital status? 7th Circuit passes