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7th Circuit Provides Leeway to Employee Who Did Not Provide a Return to Work Date While Out on FMLA Leave

| Aug 8, 2014 | Uncategorized |


In Gienapp v. Harbor Crest, Case No. 14-1053 (7th Cir. June 24, 2014), the 7th Circuit ruled that an employee who did not give a definite return to work date when she took time to care for her daughter who was diagnosed with thyroid cancer was protected under the FMLA and should not have lost her job for failing to do so. The Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq., provides up to 12 weeks of leave annually to care for children with serious health conditions. This ruling will have implications for employers, supervisors, HR personnel and others who administer FMLA leave.


Plaintiff, Suzan Gienapp, applied for and received FMLA leave to care for her daughter who had been diagnosed with thyroid cancer. When Ms. Gienapp filled out her FMLA paperwork, she left the return to work date blank. The doctor’s certification stated that Ms. Gienapp’s daughter would require assistance through at least July. If Ms. Gienapp used all 12 weeks of FMLA leave she was entitled to, her leave would have expired on April 1. Based on the doctor’s certification, Harbor Crest’s HR manager assumed that Ms. Gienapp would not return before April 1. When Ms. Gienapp reported for work on March 29, she was told that she no longer had a job.

Relevant FMLA Provisions

29 U.S.C. § 2612(a)(1)(C) provides, in pertinent part, “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” The FMLA requires notice to the employer of the need to take leave. There are different notice provisions for foreseeable leave and unforeseeable leave. Foreseeable leave is defined by the Department of Labor regulations found at 29 C.F.R. §825.302.

§825.302 Employee notice requirements for foreseeable FMLA leave. (a) Timing of notice. An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered servicemember. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.
. . . .
(b) As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.

The Department of Labor regulations for unforeseeable leave are found at 29 C.F.R.

§825.303, and provides:

§825.303 Employee notice requirements for unforeseeable FMLA leave. (a) Timing of notice. When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.
(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. . . . . If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.


The Seventh Circuit took the position and ruled that Ms. Gienapp’s leave was unforeseeable. Thus, the issue became whether not providing a return to work date was acceptable. The Court stated that “Gienapp’s application is covered by §825.303, which deals with unforeseeable leave. And §825.303, unlike §825.302, does not require employees to tell employers how much leave they need, if they do not know yet themselves.” When employees are out on unforeseeable FMLA leave, they need only comply with their employer’s policies. In this case, her employer asked that she call in once per month to provide an update, which they conceded that she did. Therefore, the Court stated that she was in compliance with §825.303(c), and noting, “What seems to have happened instead is that [the HR manager] drew an unwarranted inference from the physician’s statement in the original form and confused the anticipated duration of her daughter’s need for care with the anticipated duration of Gienapp’s absence from work, even though they are logically distinct.” The Court ruled that the employer was therefore not entitled to summary judgment on the theory that the employee failed to provide essential information for FMLA leave.