• Important Reminder About the Risk of Unexpected FMLA Liability
  • October 13, 2014 | Authors: Kathryn Hackett King; Jennifer R. Phillips
  • Law Firm: Snell & Wilmer L.L.P. - Phoenix Office
  • The Family and Medical Leave Act (FMLA) provides “eligible employees” who work for “covered employers” with up to 12 (in some cases 26) workweeks of unpaid, job-protected leave per year. A “covered employer” includes a private employer that employs 50 or more employees for at least 20 workweeks in the current or preceding calendar year. An “eligible employee” is a person who (i) has worked for a “covered employer” for at least 12 months and at least 1,250 hours during the 12 months prior to the start of the FMLA leave, and (ii) works at a location where at least 50 employees are employed within a 75-mile radius.

    The FMLA generally requires a “covered employer” to notify an employee of his/her eligibility to take FMLA leave within five business days when (1) the employee requests FMLA leave, or (2) the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.

    In some instances, an employer who is not a “covered employer” may give an employee assurances that his/her leave is covered under the FMLA. Likewise, a “covered employer” may automatically send out notice of eligibility forms to all employees who provide notice of an FMLA-qualifying condition. Before giving any employee notice of eligibility of FMLA leave, however, an employer should always analyze whether that particular employee is an “eligible employee” under the FMLA and whether the employer is a “covered employer” at the time. For example, does the employee work at a remote location where fewer than 50 employees work within a 75-mile radius? Has the employee worked for the employer for less than 12 months or less than 1,250 hours in the past 12 months?

    Many courts are imposing FMLA liability on employers with respect to employees who are otherwise not eligible for FMLA leave because the employer’s actions have misled the employee into believing that he/she is entitled to FMLA leave benefits. More specifically, courts have held that the FMLA applies—even if the employer is not a “covered employer” or the employee is not an “eligible employee”—based on the equitable estoppel doctrine. These court decisions provide that equitable estoppel applies if (1) the employer misrepresented the availability of FMLA leave; (2) the employee reasonably relied on the misrepresentation; and (3) the employee suffered a detriment because of reasonable reliance on the misrepresentation.

    While some companies have made the deliberate decision to treat all of their employees equally in offering FMLA leave, even when some of their employees work in remote locations that otherwise would not entitle them to FMLA leave, that decision should be made carefully and only after considering all of the legal consequences and costs to the company.

    Accordingly, it is critical for employers to (1) maintain proper workplace policies regarding whether the employer is a “covered employee” under the FMLA and which employees are eligible for FMLA leave; and (2) undertake a careful analysis before responding to employee leave requests.