You just approved FMLA leave for an ineligible employee. What now?


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You just approved leave under the Family and Medical Leave Act for your employee so that she can attend to her sick mother who is in the emergency room at the hospital. You used the Notice of Eligibility and Rights & Responsibilities — good for you for documenting the leave! — checking the box to state that the employee is eligible for FMLA leave. Your employee takes a few weeks off and that’s when you realize that, well…

The employee wasn’t eligible for FMLA.

What now? Let’s see what another employer did.

Those are basically the facts from this opinion I read over the weekend. Actually, there are five more important points:

  1. The employer had an FMLA policy that tracked the statute.
  2. The employee appears to have already exceeded her bank of time off.
  3. The employer acknowledged the mistake after the employee took leave, but before the employee returned the Certification of Healthcare Provider form.
  4. Shortly after the employee returned from her ‘mistaken’ FMLA leave, the employer fired her.
  5. The employee sued for violations of the FMLA.

FMLA violation?

The FMLA allows qualified employees working for covered employers to take up to 12 weeks of unpaid leave during a 12-month period, for an employee’s serious health condition or to take care of family members. The FMLA prohibits employer interference with leave and retaliation for taking leave. An “eligible employee” is “an employee who has been employed—(i) for at least 12 months by the employer . . . and (iii) for at least 1,250 hours of service with such employer during the previous 12-month period.”

The parties agree that the employee had neither been employed for at least 12 months by the employer nor had she worked at least 1,250 hours of service with the employer during the previous 12-month period.

In other words, she was not an “eligible employee” under the FMLA.

But, was the employer ‘estopped’ from denying the FMLA leave that it had mistakenly approved? ‘Estopped’ is fancy legal speak for ‘barred’.

The employee argued that the employer had to know that, when it approved the FMLA leave, the employee would rely upon that representation.

The employer argued that, even though it screwed up, the employee should have known that she wasn’t actually FMLA eligible because she had the employer’s FMLA policy, which provides the eligibility requirements for FMLA leave. Furthermore, the employer argued that it did not consider any of the FMLA-ish leave when deciding whether to end the employee’s employment.

This has a jury trial written all over it. But, I don’t wear the black robe. So, let’s see what the federal judge had to say about all of this:

The parties dispute the reasonableness of [the employee]’s reliance on [the employer’s] misrepresentations that [the employee] was eligible for leave, as well as whether [the employee]’s reliance on that misrepresentation was to her detriment. These are genuine factual disputes material to deciding if equitable estoppel applies. Summary judgment is inappropriate on the issue of whether equitable estoppel applies to [the employee]’s claims.

While the [employer] presented a legitimate, nondiscriminatory reason for firing [the employee], the arguments and record show that there are several genuine factual disputes material to determining whether the [employer]’s explanation is pretextual.

The temporal proximity connecting [the employee’s] leave, the [employer]’s retroactive denial of FMLA leave eligibility, and her termination, raises factual disputes material to whether retaliation was the reason for her termination.

In other words, ¯\_(ツ)_/¯, and a jury will get to decide who is right.

Takeaways for employers.

  1. FMLA mistakes happen. When they do, it’s ok to correct them. But, generally, it’s not ok to penalize an employee for it. That’s when you end up with a situation like the one described in this blog post.
  2. Another issue here is the prejudice to the employee. For example, if the employee had some paid time off left in her bank when she took the leave to care for her mother, it’s largely immaterial if the leave is ‘FMLA leave’ as long as she comes back to work afterward. She suffers no harm.
  3. Now, what if your policy itself was more generous than the FMLA? You can do that if you want. (You can’t erode the protections of the FMLA. Unless you like FMLA lawsuits.) But, if your policy accidentally is more generous than the FMLA, and your employee relies upon the mistake in the policy, you may be stuck with the result.


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