Be Very Careful What You Say to an Employee About FMLA Leave: You May Create a Claim That Otherwise Would Not Have Existed.

We all know that the in addition to requiring an employer to provide unpaid leave for up to twelve (12) workweeks and reinstatement upon return, the FMLA also prohibits an employer from interfering with an employee’s exercise of their rights under the FMLA. In order to be eligible for the protections of this Federal law, an employee must generally have worked for the employer for twelve months and 1,250 hours. However, employers can easily say or do things that can create an FMLA claim by employees who would ordinarily not be eligible for the protections of the Act.

By way of example; on January 25, 2017, Brillion Rest Home hired Angel Reif as an Administrator. In December of 2017, Ms. Reif informed her employer that her physician recommended that she have surgery to repair an old leg injury. Brillion’s HR Director informed Ms. Reif that although she would not be eligible for FMLA until January 25, 2018, it would be more convenient for Brillion if Ms. Reif would go ahead and have her surgery as soon as possible. The HR Director told Ms. Reif that “she should not worry about taking leave before January 25, I’m sure that it will be approved.”

In reliance upon the HR Director’s representations, Ms. Reif scheduled the surgery for January 10, 2018 and filled out the appropriate paperwork to secure time off for the procedure. Unfortunately, Brillion chose to deny Ms. Reif’s request for leave, indicating that she was not yet eligible to take FMLA leave. Ms. Reif had the surgery anyway and Brillion terminated her employment due to her absence from work.

As you might expect, Ms. Reif sued, arguing that Brillion interfered with her FMLA rights and discriminated against her because she took FMLA leave.

Brillion responded that Ms. Reif was not covered by the FMLA because she had not worked for Brillion for twelve months at the time that she took off, and thus, her claims should be dismissed.

The Court issued a common sense ruling denying Brillion’s Motion to Dismiss. In denying the Motion , the District Court judge noted that the employer “would be on solid ground as far as the FMLA is concerned if Reif had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave.” But the judge noted that, according to the allegations, that is not what happened, and if Reif’s allegations turned out to be true, “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.

While the FMLA provides us with very clear eligibility criteria (at least fifty employee, 75 mile radius, 12 months and 1,250 hours), these criteria can always modified by an employer in an employee’s favor. And, as the Brillion opinion shows, this modification need not be formal, universal or even intentional. An errant word or off-the-cuff remark from the wrong person can amount to a change in company policy upon which the employee may rely. In this case, the fact that the Brillion’s HR Director lead Ms. Reaf to believe that Brillion wanted her to take FMLA leave immediately, rather than waiting until she was “technically” qualified.

An even broader take away from this case is that it is very easy to get caught up in the legal minutia of employment related laws and regulations and to lose sight of the big picture. Will what we are doing strike the average person as egregiously unfair? If the answer is yes, judges and juries will quite often bend over backwards to find us liable, regardless of whether we are technically within our legal rights or not.

Ms. Reif’s case is still winding its way through the court system, and Brillion may eventually prevail. But if they do, it will be at significant expense. How much better off would Brillion be if their HR Director had not made an offhand statement that she could not back up, or if she had done what she said she was going to do and ensured that Ms. Reif was allowed FMLA leave despite the fact that she was a few weeks short of being technically eligible?

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