Be Careful What You Tell Employees About FMLA Leave

by Amelia J. Holstrom

Employers with 50 or more employees within a 75 mile radius are required to provide FMLA leave to qualified employees.  But what happens when an employer with fewer than 50 employees within a 75 mile radius has a handbook provision which states that it provides FMLA leave to employees who have worked for the company for 12 months and have worked at least 1,250 hours in the prior 12 months but says nothing about the 50 employee requirement?  According to the Sixth Circuit of Appeals, the answer is: the FMLA claim goes to trial.

Terry Tilley was an employee of the Kalamazoo County Road Commission.  In the summer of 2011 he began to have several performance problems, including his failure to complete various tasks by the applicable deadline.  As a result, his manager met with him and gave him until August 1, 2011 to complete several tasks.  By August 1, Tilley completed all but one task: drafting an updated job description.  According to Tilley, he planned to complete the task on August 1, but on that morning, before he could complete it, Tilley suffered what he believed to be a heart attack.  Thereafter, Tilley was out of work seeking medical treatment.

On August 9, the Road Commission sent Tilley FMLA paperwork informing him that he was eligible for FMLA leave.  Three days later, the Road Commission sent Tilley a letter terminating his employment because, in part, Tilley had failed to timely submit the job description due on August 1.  Tilley sued the Road Commission for, among other things, FMLA interference and FMLA retaliation.

The district court granted summary judgment in favor of the Road Commission finding that Tilley did not qualify for FMLA leave because the Road Commission had less than 50 employees within a 75 mile radius. Accordingly, the Road Commission could not have interfered with his FMLA leave or retaliated against him as he was not entitled to FMLA leave.  Tilley appealed.

The Sixth Circuit Court of Appeals sided with Tilley.  The appeals court acknowledged that the Road Commission did not have 50 employees within a 75 mile radius and therefore Tilley was not technically entitled to FMLA; however, the court held that Tilley could proceed to trial on his FMLA claims because he had reasonably relied on the Road Commission’s handbook and other company statements regarding his eligibility for FMLA leave.

The court’s decision was based on the principle of equitable estoppel, which is when a party to a lawsuit is prohibited from asserting a legal claim or defense that is inconsistent with its prior conduct.  The appeals court found that because the Road Commission had stated in its handbook that it provided FMLA leave to employees employed for 12 months and who worked at least 1,250 hours in the previous 12 month period, a jury could find that the Road Commission misrepresented the eligibility requirements of the FMLA and that Tilley reasonably relied on that misrepresentation in such a way that caused him harm.  As a result, the appeals court ruled that Tilley’s FMLA claims will proceed to trial, even though he did not actually qualify for FMLA leave.

The bottom line for employers is to review FMLA – and other – policies to make sure all eligibility requirements are included in the policy so that employees are not misled into thinking they are entitled to benefits for which they don’t actually qualify.

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