May an employee’s request to return early from FMLA leave be denied?

Ernie’s doctor was happy with his progress. His physical therapy was going well, and it looked like Ernie would be able to return to work and other aspects of his active life earlier than expected. While Ernie did enjoy not getting up each weekday at 5 a.m. for work, he did want to get back into the swing of things. Per his doctor, he wanted to start slowly, working only a few hours per day to begin with.

After talking to Ernie about his early return, Addie, from the HR department, wondered if she could deny the request. Allowing it would put a wrench in the production and employee schedules. Before going any further, however, Addie talked to her network of other HR professionals. Being from a smaller company, she didn’t run into FMLA-related issues too often, and this was a new wrinkle for her.

Friends, the FMLA regulations are pretty clear on such situations:

An employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave.

Therefore, Ernie would be entitled to return early; denying the early return outright would risk a claim.

Addie may, however, require that Ernie provide reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable. Addie may have obtained information earlier on such changed circumstances through requested status reports.

Let’s talk about those periodic status reports. These are not certifications and should not include medical information beyond how an employee is doing and when the employee expects to return to work. But employers may require them, and this type of information might just avoid surprises such as early returns.

If you are going to require such status reports, you should have a nondiscriminatory policy, and you must consider all the relevant facts and circumstances related to the particular employee’s leave situation.

Having a blanket policy, for example, requiring all employees to provide such reports every two weeks would not consider all the individual facts, so be careful out there.

Key to remember:  Every now and then, employees’ need for leave changes. Sometimes, they may need more leave, and sometimes they may need less leave than they initially requested.