Family and Medical Leave Act Matters – Eligibility for Leave

June 7, 2006

We thought the following matters pertaining to the federal Family and Medical Leave Act would be of interest to you.
I. Minard v. ITC Deltacom Communications, Inc., Case No. 04-30230 (5th Cir. Ct. App. 4/18/2006):
In this matter, an employee was to undergo surgery. The employer informed the employee she was eligible for FMLA leave. This determination was in error because the employee did not work at a worksite where more than 50 employees were employed within a 75 mile radius. The employer discovered its error while the employee was out on FMLA leave. When the employee was ready to return to work, the employer terminated the employee rather than restoring her to her position. Returning the employee to her position would have been required under the FMLA if she had been eligible for FMLA leave.
The employee then filed suit claiming her termination violated the FMLA. The employer responded that because the employee was not an eligible employee for leave under the FMLA, the Court lacked subject matter jurisdiction over her claim. The employee then amended her complaint to assert the employer was “equitably estopped” from asserting her non-eligibility for FMLA leave as a defense since the employer had advised her that she was eligible prior to her taking leave.
The Fifth Circuit Court of Appeals ruled that the issue of the employee’s eligibility for FMLA leave was a part of the claim for her relief. This meant the employee was free to proceed with her lawsuit and her argument that the employer could not deny she was eligible for FMLA leave because it told her she was eligible when she applied for leave.
II. Gibson v. Transport Drivers, Inc., Cib. A. H 04 2083 (S.D. Texas, 3/8/06):
In this case, an employee sued his employer alleging the employer told him that he was eligible to take FMLA leave for a back condition, but failed to tell him his vacation time would run concurrently with his FMLA leave. The employee worked for about one week between the end of his FMLA leave and the beginning of his vacation. When he returned from vacation, he was advised of his FMLA rights and also advised he was being terminated for failing to appear for work since he had used up his vacation during the FMLA leave.
However, the employee was not eligible for FMLA leave at all because he was employed at a facility with fewer than 50 employees in a 75 mile radius. Based upon this fact, the lower federal district court dismissed the case even though it was undisputed that the employer had told the employee that he was entitled to FMLA leave. This ruling is contrary to the ruling of the Fifth Circuit Court of Appeals in the above Minard case. The Gibson matter has been appealed and if a higher Court rules in accord with Minard, it will likely be overturned.
The above cases highlight the difficulties that can arise when an employer grants FMLA leave to an employee before the employer verifies the employee is eligible for FMLA leave. Such mistakes can result in an employer fighting a lawsuit in court or before an administrative agency the employer never would have become involved in had the employer simply denied the employee FMLA leave on the basis that the employee did not qualify for leave.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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