Don't come back

According to a federal judge in Pennsylvania, employees are not entitled to the job restoration protections of the FMLA after the statutory leave has expired, even where the employee has received permission from the employer to extend that leave. Wevodau v. Commonwealth of Pennsylvania, et al, 2017 BL 1246 (MDPA, January 4, 2017).

Kevin Wevodau, a former FBI employee, was hired in 2013 by the office of Pennsylvania’s Attorney General, Kathleen Kane, as a Special Agent in Charge of the Bureau of Criminal Investigations. In 2014, Wevodau’s relationship with the Attorney General was made complicated by the fact that Kane cancelled a “sting” operation that Wevodau believed was valid and necessary, and after which Kane refused to bring charges.

In December 2014 and January 2015, Wevodau testified before a grand jury investigating allegations of wrongdoing within Kane’s administration. Subsequently, the relationship between Kane and Wevodau became more strained when an undercover agent involved in the earlier sting operation filed a defamation suit against Kane and Wevodau, which then publically spotlighted the disagreements between those two regarding the operation.

In June, a meeting was held between Kane and Wevodau after which Wevodau claimed that Kane threatened him and told him to resign. Within days, Wevodau applied for a 12-week leave of absence under the FMLA for “personal health issues,” and the leave was granted. Five weeks after the expiration of that leave, Wevodau attempted to return to work, but was told that to return, he would have to undergo a fitness for duty examination. Wevodau failed to return to work at any subsequent point – but explained that his failure was because he was not told exactly what he needed to do to complete the evaluation, and not on any medical inability to return. Although he remained on a paid administrative leave, Wevodau was no longer on FMLA leave.

After over eight months on administrative leave, Wevodau filed a state court lawsuit which included an FMLA retaliation claim, arguing that the Commonwealth’s “refusal” to allow him to return to work was retaliation. The lawsuit was removed to federal court, and the Commonwealth moved to dismiss the FMLA claim, arguing that Wevodau lost his entitlement to job restoration once his FMLA leave expired. In response, Wevodau claimed that the fact that his employer had provided additional, non-FMLA leave extended his job restoration rights.

The district court held in favor of the employer here, and cited multiple decisions of the Third Circuit, each of which included the same holding: employees are not entitled to the job restoration protections of the FMLA after the statutory leave has expired, even where the employee was given express permission to extend the leave beyond the 12 weeks allotted by the FMLA.

In this case, there was no complicating factor – as there might be in some cases – where the employee’s delayed return could be viewed as an accommodation under the ADA during which some medical issue is resolved. Here, Wevodau was medically released to return to work at the conclusion of his FMLA leave, but did not do so. The court did not agree with his assertion that the permission to extend his leave also extended his right to job restoration and instead, relied on Third Circuit precedent to dismiss the FMLA retaliation claim.