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Ineligible Employee Placed on FMLA Not Entitled to Act's Protection

    Client Alerts
  • July 24, 2009

Employers commonly apply the term "FMLA leave" to many employee absences not covered by the actual Family and Medical Leave Act.  A new case from the Sixth Circuit Court of Appeals refused to enjoin an employer who mistakenly placed an ineligible employee on FMLA leave.

In Dobrowski v. Jay Dee Contractors, the plaintiff informed his employer that he needed time off for surgery related to an epileptic condition.  The employer provided him with FMLA paperwork and granted the leave.  After returning from the leave, the employer informed the employee that his job had been eliminated for business reasons.  He sued, claiming interference with his FMLA rights.

In its response, the employer noted that at the plaintiff's worksite, it did not have 75 employees in a 50-mile radius, thus making him ineligible for FMLA leave.  The plaintiff contended that the employer was equitably estopped from raising the eligibility issue because it had already granted FMLA leave.

The Sixth Circuit affirmed the dismissal of the claim.  The court refused to adopt a standard for estoppel in FMLA cases that would have required the plaintiff to show intentional misrepresentation by the employer.  However, the plaintiff could not demonstrate another requirement for estoppel; that he relied on the employer's representations to his detriment.  In this case, the employee was going to have surgery regardless of whether the employer told him he was eligible for FMLA leave.

In the absence of such detrimental reliance, estoppel will not apply.  However, in a different fact situation involving an employee with flexibility over whether and when leave is requested, mistakenly placing an employee on FMLA leave could prevent an employer from later raising the eligibility issue.  Employers should never characterize leave as FMLA unless they are certain that the employee qualifies under the statute.