Just yesterday, the Ninth Circuit Court of Appeals ruled that “when an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement [under the FMLA], the burden of proof on that issue rests with the employer.”

Specifically, in Sanders v. City of Newport (9th Cir., March 17, 2001), the court addressed a situation where an employee was denied reinstatement after taking leave under the FMLA.  In its decision, the court first noted that the FMLA creates two interrelated rights for employees:  (1) the right to use a certain amount of leave for protected reasons and (2) the right to return to his or her job or an equivalent job after using protected leave.  Thus, under the FMLA, an employee is entitled to take leave with the expectation that he will return to work after the leave ends.

This court also noted that this right to leave, however, is not absolute.  Rather, the employee’s right extends only to what he would have been entitled to had he not taken any leave.  For example, an employee would not have a right to reinstatement if he would have otherwise been laid off due to a reduction in force during his leave period, or if he is unable to perform the essential functions of his job because of a physical or mental condition after exhausting his FMLA leave.

The court then ruled that – when an employee is denied reinstatement – the burden of proof is on the employer to establish a legitimate reason for denying reinstatement.  For example, the burden would rest on the employer “to establish whether the employee can perform the essential functions of the job.”  The court’s decision was based on language from the Code of Federal Regulations stating that “[a]n employer must be able to show, when an employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order ot deny restoration to employment.”

By reaching this conclusion, the court has joined the 8th, 10th and 11th circuits in placing the burden of proof on the employer in denial of reinstatement cases under the FMLA.

You can read a copy of the court’s decision here.