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HR’s assurance that employee would receive FMLA leave before eligibility makes FMLA claims plausible

By Lorene D. Park, J.D.

After learning an employee planned to take FMLA leave as soon as she reached the 12-month mark for eligibility, a human resources coordinator allegedly told her to begin leave as soon as possible (with no medical reason) and encouraged her to move up her surgery date, assuring the employee she would receive FMLA leave and her job would be waiting. Instead, the employee was denied FMLA coverage and terminated. Refusing to dismiss her subsequent FMLA interference and discrimination claims, a federal court in Wisconsin found that should her allegations turn out to be true, the employer could be estopped from denying FMLA coverage. The court also pointed to an Eleventh Circuit opinion stating that the FMLA’s advance notice requirements shouldn’t be a trap for newer employees (Reif v. Assisted Living by Hillcrest LLC, dba Brillion West Haven, November 6, 2018, Griesbach, W.).

The employee was hired on January 25, 2017 to be an administrative assistant at an assisted living facility. During her employment, she experienced significant pain in her right hip and knee due to an abnormal gait she had adopted due to an unsuccessful repair of a tear to her Achilles tendon. In early January 2018, the employee’s doctor advised her that surgically repairing her Achilles would improve her gait and significantly reduce her pain and difficulties.

Meetings with HR about FMLA leave. In a January 9 meeting with an HR coordinator, the employee stated her intent to have surgery after she became eligible for FMLA leave. The HR rep informed her that she would not be eligible for FMLA leave until January 25, the date on which she would have been employed there for 12 months. The employee then scheduled her surgery for January 31 and informed the HR rep.

Later that same day, after consulting with an executive administrator about the employee, the HR rep told the employee to immediately “punch out and go home until [she was] completely healed from surgery.” Even though the employee was not under any restrictions from her doctor, the HR rep allegedly said the administrator wanted her sent home because she was a liability and the employer didn’t want her to injure herself further and file for worker’s compensation claim.

The HR rep also allegedly told the employee to schedule her surgery as soon as she could, and she would work with the employee so her FMLA would be approved. The employee was assured her job would still be there for her when she returned.

Despite assurances, FMLA denied and employee fired. The employee allegedly relied on these assurances and had her surgery moved up to January 17. She submitted her FMLA application on January 10. On January 22, she received a letter dated January 19 and signed by the same HR rep, acknowledging receipt of her FMLA request but stating she didn’t meet eligibility requirements. She was also informed on January 24 that the employer would not hold open her position. After the employer received a doctor’s certification that the employee could return with restrictions, she was informed her position had been filled. She filed suit.

Employer may be estopped from denying FMLA coverage. Moving to dismiss, the employer argued the employee was not an “eligible employee” under the FMLA because she had not been employed for 12 months when leave was to start. Denying the motion, the court said the employer “would be on solid ground as far as the FMLA is concerned if [the employee] had simply taken off for her surgery on her own prior to becoming eligible,” but that was not the case here.

According to the complaint, the HR rep told the employee to begin her leave immediately, even though there was no medical reason to do so, and encouraged her to move up her surgery, assuring her that she would receive FMLA leave and her job would be waiting. In the court’s view, if these allegations turn out to be true, then the employer might be estopped from refusing to grant the employee FMLA leave: “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.”

FMLA notice requirement shouldn’t be a “trap” for newer employees. Even without equitable estoppel, it appeared to the court that the employee’s FMLA claims survive under the Eleventh Circuit’s ruling in Pereda v. Brookdale Senior Living Communities, Inc., which found that a loophole under which an employer can fire an employee who plans to take FMLA leave before she became eligible, would be “contrary to the basic concept of the FMLA,” including the advance notice requirements of the FMLA. Without a remedy, advance notice would be a trap for newer employees. Based on the appellate court’s reasoning, the court here refused to dismiss the employee’s FMLA interference and discrimination claims.

State-law claims fail. On the other hand, the court dismissed the employee’s intentional and negligent misrepresentation claims because, under Wisconsin law, the breach of an employment contract is not actionable in tort. Her claim against the HR rep for promissory estoppel failed because the promise at issue was continued employment and the HR rep was not the employer so there was no basis for insisting on enforcement of an employment promise against her.