If your employee uses all 12 weeks of FMLA leave and still can't return to work, do you have to leave his/her job open? According to the EEOC, and many courts, yes. The Seventh Circuit, however just handed down a ruling that seems to say "No". You may be asking, "What do you mean seems to say? Either it does or it doesn't". Well, I understand the thinking, but bear with me here. As you know, employment cases most often turn on their specific facts and this one is no exception.