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Employees Unable to Return to Work After Exhausting FMLA Leave

A Sixth Circuit decision lays down the rules with respect to how an employer can use evidence that an employee cannot return to work after he or she has exhausted their 12-weeks of Family and Medical Leave Act ("FMLA") leave.  Edgar v. JAC Prods., Inc., 443 F.3d 501 (2006).  The way this evidence can be used depends on (1) the type of FMLA claim, i.e., interference or retaliation and (2) when the employer discovered the evidence.

The rules stem from a series of cases.  In Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784-85 (6th Cir. 1998), the Sixth Circuit held that a company has not violated the FMLA by terminating an employee after their 12-weeks of leave has been exhausted if the employee is incapable of returning to work at that time. 

Further, in Rogers v. AC Humko Corp., 56 F. Supp. 2d 972, 976-77 (W.D. Tenn. 1999), the district court found that the after-acquired evidence rule applied in FMLA retaliation cases.  In Rogers, the employer discovered that, after the employee's termination, the employee could not return to work anyway.  The court used this evidence to limit the employee's recovery, but not to completely bar liability.  This followed the precedent set forth by the Supreme Court in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), which was an age discrimination case.  (The Rogers rule was adopted by the Sixth Circuit in Edgar.)

Thus, a concise picture of the rules is as follows:

(1)   In interference cases (also referred to as entitlement cases), Cerhs and Department of Labor ("DOL") regulations provide a defense to liability, regardless of whether the medical evidence revealing the employee's inability to return to work is available before or after the termination decision;

(2)   In retaliation cases where the medical information known to the employer prior to the termination decision shows that the employee could not return within 12 weeks, Cerhs and DOL regulations can be invoked by employers as a legitimate, non-discriminatory reason for discharging the employee, i.e., to rebut the employee's prima facie case of discrimination; and

(3)   In retaliation cases where the employer learns of the employee's inability to return to work only after the termination decision, Cerhs and the DOL regulation will not provide a defense to liability, but may limit the relief to which the employee is entitled in accordance with the after-acquired evidence rule articulated in McKennnon.

By: Chelsea Long

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