Can FMLA Leave Be Indefinite? It Depends

Can FMLA Leave Be Indefinite? It Depends Photo: Arjunaraoc, via Wikimedia Commons

Can employees take leaves for the unforeseeable future under the Family and Medical Leave Act? According to Tiffani McDonough of Obermayer Rebmann Maxwell & Hippel, the answer depends on whether the leave is actually categorized as such. She explains that under the FMLA, if the leave is specifically outlined as foreseeable, the employee must include the expected duration of it. However, there’s also an “unforeseeable leave” category, in which the employee just needs to comply with the company’s policies, such as providing time estimates and checking in.

A recent case from the U.S. Court of Appeals for the Seventh Circuit addressed the issue of what happens when the employee is on an unforeseeable leave and the company wants to replace her. In the case, the employee was taking time off to look after her daughter, who had thyroid cancer, and the company granted her 12 weeks. She sent in the formal FMLA leave application while away and left the time period blank. In the application she included a doctor’s statement explaining her daughter’s prognosis was uncertain and she would need assistance for a longer time period than the leave granted, explains McDonough.

The company replaced the employee, saying it inferred she would not be back by the time her leave expired. “The court found that the employer’s actions were in violation of the FMLA,” said McDonough. The company had a policy demanding the employee phone and check in each month, and the court held the employer should have clarified the employee’s date of return in these instances. Even if she was still uncertain, the company was obligated to keep the employee’s job open until her original FMLA leave expired, she says.

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