Reinstatement is nearly a universal right held by employees returning from leave under the Family and Medical Leave Act (FMLA). Courts have long held, with few exceptions, that employees returning from FMLA leave are entitled to reinstatement. In Sanders v. City of Newport (9th Cir. 08-35996), the Ninth Circuit reinforced this obligation by holding the burden is on the employer to justify why an employee cannot return from FMLA leave.

Diane Sanders worked as a billing clerk for the City of Newport, Oregon (the “City”). Sanders took an extended FMLA leave after her diagnosis of “chemical sensitivity issues” due to the City’s use of a particular type of paper. She was only cleared to return to work under the condition she would not be exposed to the same type of paper in the future. While the City ended its use of the particular type of paper, it refused to reinstate Sanders as a billing clerk. The City argued against reinstatement on the grounds it could not guarantee Sanders protection from her chemical sensitivity issues in the future. 

Sanders filed suit alleging, among other things, the City denied her right to FMLA reinstatement. A jury returned a verdict in favor of the City, finding it had not violated Sanders’ FMLA rights. On appeal, Sanders claimed the court had wrongly instructed the jury on her FMLA claim, arguing that the jury should have been instructed that the burden of proof was on the City to show a justifiable reason for refusing reinstatement. Concurring with Sanders, the Ninth Circuit found that under FMLA regulations, employers must establish a legitimate reason for denying an employee reinstatement. As such, the Court ruled the burden of proof necessarily lies with the employer in demonstrating the necessity of a denial of reinstatement.

In the wake of the Ninth Circuit’s ruling, it is now even more important for employers to carefully consider denying an employee reinstatement after FMLA leave. Regardless of an employer’s good intentions, the ability to justify denying reinstatement with an allowable explanation under FMLA regulations is critical. Already a difficult area of law for employers to maneuver, FMLA leave is now even more complex and conscientious deliberation is key.