Burden of Proof for Failure to Reinstate Employee after Family Leave Lies with Employer, not Employee

Under federal law, an employee can bring a claim against an employer for failure to reinstate him or her after a family leave permitted under the Family & Medical Leave Act (FMLA) (state law provides the same protection under the California Family Rights Act (CFRA)). An employer can defend against such a claim by proving that it has a legitimate reason to fail to return the employee to work, such as the employee cannot perform the essential functions of the position. 29 CFR Section 825.214(b). After Ms. Sanders took a one month family leave due to chemical sensitivities, her doctor returned her to work. Sanders and her doctor believed she could return to work because her employer, the City of Newport, had stopped using the type of paper that was causing her medical problems. The City of Newport refused to reinstate her, claiming that it could not provide her with a safe workplace, and did not know exactly what caused her chemical sensitivities. Sanders v. City of Newport, (9th Cir. March 17, 2011) 657 F.3d 772.

This case was tried in federal district court in Oregon on both a FMLA and a state family leave claim under Oregon law. Regarding the FMLA claim, Ms. Sanders asserted that it was the employer’s burden to prove that she was denied reinstatement for a legitimate reason. The district court disagreed, and instructed the jury that it was the employee’s burden of proof. Thankfully, the Ninth Circuit reversed, agreeing with Ms. Sanders, and establishing the important precedent that the employer bears the burden of proof on its claim that it has a reason not to return an employee back to work after a family leave.
Employees in California also have the protection of CFRA and CFRA itself indicates that the employer must “guarantee” reinstatement. Gov. Code Section 12945(a) and 2 Cal. C. Regs. Section 7297.2(a), (c). Although this doesn’t address the burden of proof issue, presumably the courts will interpret CFRA the same as FMLA for this issue.

Who bears the burden of proof in any case and on any issue is often an unglamorous but exceedingly critical point. An employee has the right to reinstatement after a family leave. This is an important and fundamental right. Forcing an employee to disprove the employer’s own assertion that there was good reason to violate the right to return to work after a FMLA leave would have turned this important right on its head. The Ninth Circuit’s family friendly ruling, making the employer prove its case, was the only sensible solution.

Jody LeWitter
April 23, 2011