Telling An Employee They Are Eligible For FMLA Leave May Mean They Are Eligible… Even If They Aren’t

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leaves to employees who meet a set of eligibility standards.  These standards can be somewhat complex and, even though the FMLA has been around for over 20 years, employers still get make mistakes when determining eligibility.  The question then arises, what if your employer tells you that you are covered but then fires you when they later determine you are not actually eligible?  This exactly the scenario that arose in a recent federal appeals court decision.  See Tilley v. Kalamazoo County Road Commission, 777 F.3d 303 (6th Cir. 2015) (hat tip to the Employer Law Report for bringing this case to my attention).  Hit the jump for all the details…

Part of the reason why Family Medical Leave Act (FMLA) eligibility is so complex is that there are eligibility requirements for both the employee AND the employer.  For a private employer to be covered by the FMLA they must employ at least 50 employees.  Government agencies and primary and secondary schools are considered automatically covered.

Employees have to meet three requirements to be eligible for FMLA leave:

  1. The employee must have worked for the employer for a total of 12 months (not necessarily consecutively);
  2. The employee must have worked 1,250 hours in the last 12 months; and
  3. The employee must work in a location where the employer has at least 50 employees within 75 miles of the location.

Once an employee determines they meet the eligibility requirements and their employer is covered by the FMLA, then they can take time off for one of the reasons allowed by the FMLA (for more information check out my video on FMLA coverage).  But what happens if one of these requirements isn’t met but the employer still tells the employee they are covered and lets them take leave?

In Tilley, an employee had worked for their employer for 17 years before he started having issues with his supervisor.  Over approximately 2 years the employee was repeatedly required to submit and resubmit work that his supervisor claimed was deficient.  When a third and final deadline was approaching for an item, the employee suffered heart-attack symptoms and was admitted to the hospital for overnight observation.  The doctor then advised the employee to remain off work for a week to monitor his recovery.  During his absence, the employee received FMLA paperwork from his employer that included a cover letter noting he was “eligible for FMLA leave” and with a box for “eligible for FMLA leave” that was checked.  Shortly after receiving these documents the employee was terminated for failing to meet the required deadline. At trial, the court dismissed the employee’s FMLA claims because he could not show that the employer had 50 employees within 75 miles of his worksite.

On appeal, the Court reversed the trial court’s dismissal and found that the employee may be entitled to FMLA protection.  The Court began by clearly stating that the “50/75-Employee Threshold” is required to be met by all employees, even those who work for public employers (that are automatically covered by FMLA) but have less than 50 employees.  Therefore, the Court found that the employee could not show that he was eligible for coverage under the FMLA.  However, the Court then held that the employer may be prohibited from arguing that the employee was not covered by the FMLA because of the paperwork they sent him that said he was eligible for FMLA (in legalese this is known as being “estopped”).  The Court held that if the employee could show that there was a definite misrepresentation and he reasonably relied on that misrepresentation to his detriment then the employer would be prohibited from contradicting the misrepresentation they made.  Finding that such a situation might exist in this situation, the Court sent the case back to the trial court to continue.

Obviously, situations like Tilley are rare and fact specific, but employees should be able to draw some comfort that if their employer is telling them they can take FMLA leave they will have some protections even if it turns out their employer is wrong.  FMLA situations can be confusing and people are usually faced with trying to figure these issues out while also dealing with their own illness or the illness of a loved one.  Therefore, if you are a Missouri NEA member you should immediately contact your UniServ Director if you are dealing with an injury or illness that impairs your ability to work.

If you would like to read more of what I have written about the Family Medical Leave Act just follow this link (there are a bunch).

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