Court: No reinstatement for you!

Posted August 6, 2021 

Employees are not always familiar with the details surrounding the FMLA provisions. Take the story of Steve, for example.

Back in the October 2016, Steve took FMLA leave for his own serious condition. On January 10, 2017, he provided a medical release, and was told by HR that he would return to his position on January 17. On January 13, however, he was advised by HR that he was being terminated and would not return to work as previously agreed. Nor did they offer Steve any other open positions.

This did not sit well with Steve, and he filed suit. His primary argument was that, once he delivered his physician’s return-to-work release, the company bore an absolute obligation to restore him to his position, and that its failure to do so violated the FMLA as a matter of law. Those familiar with the FMLA know that this is not necessarily true.

Steve’s other arguments included the following:

• He had been a good employee and was told he could return to work, then told not to do so.
• He was never informed of a reduction-in-force or that it was the reason he was terminated.
• The company had hundreds of job openings, but when Steve threatened litigation, the company deleted numerous job postings.
• The mere three days between providing a medical release and the termination gave rise to a retaliation claim.

The company argued that Steve was one of many that were included in a reduction-in-force and the FMLA leave was not the deciding factor.

The court rejected Steve’s arguments, and indicated that he was not automatically entitled to reinstatement simply because he provided a return-to-work release. The right to reinstatement under the FMLA is not absolute. If an employee would not otherwise be reinstated for reasons other than the taking of FMLA leave, the employee need not be reinstated.

In the case, the company would have eliminated Steve’s position regardless of whether he was on FMLA leave. Among other things, the company argued that:

• Steve’s position was eliminated as part of a company-wide reduction in force (RIF) that focused on the top 10 percent of the most highly compensated employees;
• Steve’s position was included in the RIF list before he submitted his return-to-work release; and
• The company executives expressed concerns about Steve’s high salary as early as 2015, before he took FMLA leave.

The court ruled in favor of the employer.

Friends, if you’re going to deny reinstatement in such a situation, remember to have valid reasons behind such a decision and to have documented evidence supporting those reasons.

This employer might have lowered its risk of having to defend a claim if it had informed Steve of the RIF earlier, and indicated that was the reason he was let go. That way, he might have had fewer reasons to believe the leave was the basis for the termination.

Barger v. First Data Corporation, 2nd Circuit Court of Appeals, No. 19-3538, July 6, 2021

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.