The U.S. District Court for the Eastern District of Wisconsin, in Reif v. Assisted Living by Hillcrest LLC, has confirmed that a Family and Medical Leave Act (“FMLA”) claim may be triggered when an employer promised FMLA coverage before an employee’s eligibility under the statute took effect.
Law. Employees are not eligible for FMLA leave unless, among other things, they have worked for a covered employer for at least 12 months.
It is unlawful for an employer to: (i) interfere with the exercise of (or attempt to exercise) any right provided by FMLA; or (ii) discriminate against an individual for opposing any unlawful practice under FMLA.
Background. In Reif, the employer hired the plaintiff on January 25, 2017, and in early January 2018, the employee’s physician advised her to undergo surgery to repair an injury to her Achilles tendon. When the employer advised the plaintiff that she would not be eligible for FMLA leave until January 25, 2018, she scheduled the surgery for January 31, 2018, and notified the employer of her intent to take FMLA leave during that period.
On the same day as the plaintiff’s FMLA request, one of the employer’s human resources coordinators responded and advised: (i) that she needed to schedule surgery as soon as possible; (ii) that she would work with her so that the FMLA leave was approved; and (iii) that her job would be available when she returned from leave. Moreover, despite the fact that the plaintiff’s physician had not placed any physical restrictions on her, the employer sent the plaintiff home, explaining that she could not return to work until after her surgery because “she was a liability” and could further injure herself by working.
The plaintiff followed the employer’s instructions and had the surgery on January 17, 2018. After the surgery, the plaintiff was informed by the employer that she was not eligible for FMLA leave and that she was terminated because the employer refused to hold her job for her during her recovery.
The plaintiff responded by filing a lawsuit against the employer, alleging it had interfered with her FMLA rights and had illegally discriminated against her by terminating her employment because she had taken FMLA leave. The employer filed a motion to dismiss the plaintiff’s claim on the basis that she was ineligible for coverage under FMLA because she had not been employed for one full year when she made the request for leave.
District Court. The district court denied the employer’s request for dismissal. In doing so, the court explained that “the employer would be on solid ground as far as FMLA is concerned” if the plaintiff had simply taken time off on her own for the surgery before becoming eligible for FMLA leave. The court observed, however, that based on the allegations, this was not what happened. The court noted that if the plaintiff’s allegations were 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.”
Employer Takeaway. In the wake of Reif, employers must be careful because they can be held liable if they do not ultimately provide what their personnel have offered. Although Reif is still in its preliminary stages, it serves as a cautionary example for employers concerning the impact that comments by its human resources employees can have on employee rights to FMLA leave.