Family and Medical Leave Act only Protects Employees Able to Return to Work Upon Expiration of 12 Week Leave

Under the federal Family and Medical Leave Act of 1993 (“FMLA”), an eligible employer is entitled to take up to 12 weeks of unpaid leave per year in connection with, among other things, a “serious health condition.” Upon return from such leave, such employee is entitled to be restored to the same or equivalent position. Recently, the United States Court of Appeals for the Second Circuit (which embraces New York, Connecticut and Vermont) held in Roberts v. The Health Association that an employer does not violate the FMLA where it terminates an employee while on FMLA leave, where it is clear that the employee would not have been able to return to work upon the expiration of the 12 week leave.


In Roberts, the employee was terminated while she had been out on leave for about 10 weeks. Although such a termination constituted a technical violation of the FMLA, at the time of her firing, the employee’s phyician had determined that she would not be medically able to return to work at the expiration of her 12 week leave entitlement. Thus, according to the court, the employee was not prejudiced by her premature termination because she would not have been able to return fto work after 12 weeks, and, consequently, the employer would have had no obligation to reinstate her in her former or equivalent position.
The FMLA is a very difficult statute to interpret. Moreover, many employees sometimes confuse the protections offered by the FMLA with, perhaps, the enhanced leave benefits provided by some employers. Although employers are required to comply with the FMLA, such employers are not necessarily bound by their policies providing for greater leave benefits.