FMLA Protection Before FMLA Eligibility

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 30, 2018

What if an employee is mistakenly told that the employee’s absence will be covered under FMLA when the employee is not yet eligible for such protection? In the case of Reifv. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven, employee Angel Reif was hired on January 25, 2017.(E.D. Wis. Nov. 6, 2018). Prior to her one-year anniversary for FMLA eligibility, she discussed with her HR Coordinator the need for surgery to repair a knee and hip. The Coordinator told her that she would not be eligible for FMLA until January 25, 2018, so Reif notified the coordinator that she intended to take FMLA as of January 31, 2018, the day of surgery. After the HR Coordinator spoke with the Administrator of the facility, the Coordinator told Reifto clock out immediately and not return to work until she was completely healed (even though Reif was not under any workplace restrictions). The Coordinator told her she should schedule her surgery as soon as possible, and that she would work with Reif to ensure her FMLA would be approved so that her job would be available for her when she was able to return to work. Accordingly, Reif submitted a request for FMLA leave to become effective on January 10, 2018 and had the surgery one week later. Two days after surgery, the HR Coordinator sent Reif a letter telling her that she was not eligible for FMLA. On January 24, 2018, Reif received an additional letter from the HR Coordinator stating that the company would not hold the position for her. On February 9, 2018, Reif received yet another letter from the HR Coordinator telling her that her position had been filled. Reif sued, claiming under state law misrepresentation and promissory estoppel and also claimed under federal law interference with her FMLA rights.

The employer sought dismissal of the FMLA claim, asserting that sinceReif was noteligible under FMLA, she had no right to raise an FMLA violation. In rejecting that claim, the court stated that “it would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.” The message to employers is when making a decision about whether an employee will receive FMLA benefits they may not be entitled to, it may actually create some form of a contractual right or FMLA protection for that employee. We see this occur where employers voluntarily extended FMLA benefits to employees who are at a location where there are not 49 other employees within a 75-mile radius of where that employee works. In essence, if you tell the employee that he or she will be covered under FMLA, be prepared to adhere to that even if the employee would not have been.