Are You Providing FMLA to Ineligible Employees?

June 12, 2018 |

I have many multi-state clients who like to provide the same benefits to all of their employees, across all locations.  In some cases, this may mean providing FMLA to employees in a location with less than 50 employees within a 75 mile radius – employees who are not actually eligible for FMLA under the law.

As a reminder, to be eligible for FMLA the employee must have been employed with the employer for a year and worked at least 1250 hours within the last 12 months.  The employee must also work at a job site with at least 50 employees within a 75 mile radius.

Recently, a client called to ask me whether she needed to provide FMLA to an employee who worked out of a 10 person office in another state.  The Company included an FMLA policy in their handbook that was given to all employees, and had allowed another employee at that location to take FMLA for purposes of parental leave a year earlier.  My advice to the client was to allow the employee to take FMLA, and treat him as though he was protected by all aspects of the law.  We then got to work on updating the handbook language, and on drafting a memo notifying the employees in the small office of the company’s change in policy related to FMLA going forward.

In the recent case of Reid v. Centric Consulting, LLC, a U.S. magistrate judge drives this point home, holding that an employee can bring a retaliation claim under the federal Family and Medical Leave Act even if the employer isn’t covered by the statute.

The plaintiff in the case, took 17 weeks of medical leave after being put on a performance improvement plan. The employer labeled 12 weeks of the leave as FMLA leave, even though the company did not have 50 employees within 75 miles of the employee’s job site.

Three months after returning from leave, the employee was (allegedly) fired for performance reasons.  The employee brought an FMLA retaliation claim, claiming that because the Company told him his leave was covered by FMLA, they were equitably estopped from retaliating against him.

U.S. Magistrate Judge Judith G. Dein held “there is no First Circuit precedent to limit the application of equitable estoppel to interference claims,” and “there are strong policy reasons to hold otherwise.”

This decision is consistent with the 1st Circuit’s precedent that equitable estoppel may be applied to FMLA interference claims.

By calling the leave FMLA, the employer is promising the employee that he/she will be given the protections of the FMLA, including protection against interference and retaliation.

To avoid an FMLA retaliation/interference claim, employers who are not covered by FMLA should consider the following tips:

  1. Don’t use the DOL’s FMLA forms for leaves that are not FMLA.  While these forms may work well for a disability leave or personal leave for an employee not covered by FMLA, by using the forms the employer is implying that FMLA is being administered.
  2. Don’t provide FMLA to employees who are not eligible.  If you are interested in providing an FMLA-like leave to these employees, call it something else.


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