The Family and Medical Leave Act (FMLA) does not require an employer to hold an employee’s job open indefinitely, according to the 1st U.S. Circuit Court of Appeals.
Kathy Henry worked for United Bank as one of three commercial credit analysts. In January 2008, Henry’s neurologist diagnosed her with a spinal cord compression in her cervical spine. She began physical therapy and worked with accommodations (including an ergonomic chair) provided by the bank.
Henry’s symptoms worsened and on July 1, 2008, she could no longer work and took a leave of absence. Henry gave the bank a note from her primary care physician (PCP) that said she would be on bed rest until further notice. Henry’s job duties were covered by her supervisor and the other two credit analysts.
The bank gave Henry forms to certify her leave under the FMLA. In late July, the bank told Henry that her FMLA leave had begun on July 1. In September, however, the bank sent Henry a letter stating that her leave was not qualified as FMLA leave because she had not provided adequate documentation. The bank included a “Certification of Health Care Provider” with that letter.
Henry’s PCP returned the certification in mid-September, saying that Henry could work on a normal schedule with “no heavy lifting.” Vice President of Human Resources Miriam Siegal told Henry that she had to return to work on Sept. 25 (one day after a scheduled appointment with her neurologist). Siegal referred to Henry’s absence at this time as “unexcused,” rather than as FMLA leave, because it “had not been supported by [her] healthcare providers.”
On Sept. 25, Henry provided a note from her neurologist that said she was scheduled for surgery and had to remain out of work “until further notice.” Henry also sent an e-mail to Siegal explaining that her surgery was scheduled for Oct. 17. Siegal terminated Henry’s employment later that day, stating that the bank had given Henry 12 weeks of FMLA leave (even though her medical documentation did not support it) and that it could not hold her position open indefinitely.
Henry had surgery in October and was released to work without restriction until April 2009. She sued the bank for FMLA retaliation and brought disability claims under Massachusetts state law. The trial court granted summary judgment in the bank’s favor.
The 1st Circuit affirmed the trial court’s decision. The court credited the bank’s undisputed evidence that it needed to maintain three credit analysts and that, in its business judgment, the position needed to be filled with a regular employee as opposed to a temp. The court also rejected Henry’s argument that the inconsistent characterization of the leave—first as FMLA and later as “unexcused”—was evidence of retaliatory motive. The court emphasized that the characterization of the leave as “unexcused” was due to insufficient paperwork, and that the bank demanded that Henry return to work only after Henry’s PCP certified that Henry could work without heavy lifting. The court then reiterated that the bank consistently maintained its position that it could not hold Henry’s job open indefinitely.
Henry’s state-law disability claims failed for largely the same reasons as her FMLA claim. The court also acknowledged that a limited extension of unpaid leave might be required as a reasonable accommodation under laws protecting people with disabilities, but that an “open-ended or indefinite leave extension” is not a reasonable accommodation.
Henry v. United Bank, 1st Cir. No. 11-1666 (July 13, 2012).
Professional Pointer: Employers should require updated and complete medical certifications throughout the employee’s entire leave period. This includes determining at the outset whether the requested leave is covered by the FMLA and accurately tracking the use of leave.
Jason W. Palmer is an attorney with Denlinger, Rosenthal & Greenberg Co. LPA, the Worklaw® Network member firm in Cincinnati.