Family and Medical Leave rights only extend to eligible employees who work at locations covered under the law's minimum size criteria. Employers sometime make an initial determination that an employee is eligible for FMLA leave, later to determine that this is not the case. Last month, the Eleventh Circuit Court of Appeals dodged deciding whether these employees could claim that employers in these situations are equitably estopped from later denying FMLA leave rights.

In Dawkins v. Fulton County Gov't., the plaintiff emailed her supervisor, stating that her uncle had a terminal illness, and that she needed FMLA leave to provide support and care for her family. The supervisor approved the request by reply email, but the County later reinstated her to a position she viewed as not equivalent to the one held at the time leave was granted. Of course, leave to care for a sick uncle is not covered under the FMLA, and the plaintiff instead claimed that the County was equitably estopped from taking any action inconsistent with the FMLA due to the supervisor's approval of the leave request.

The Eleventh Circuit affirmed dismissal of the claim, but failed to determine whether federal common law recognizes equitable estoppel in the event of an ineligible employee told that he or she could take FMLA leave. In a 2-1 decision, the Eleventh Circuit concluded that the plaintiff could not meet the elements of equitable estoppel, and therefore the court did not need to decide whether it was an available remedy in this circumstance. She had taken FMLA leave for other reasons in the past and knew that the process involved paperwork, including leave request and medical certification forms. Therefore, there was no reasonable reliance on the supervisor's email reply, which the plaintiff knew to be insufficient in and of itself to approve FMLA leave.

If federal courts recognize equitable estoppel in non-eligible FMLA cases, employers would need to step up their training and use of formal FMLA approval processes. Managers and human resource professionals would need to be careful about any indication that a leave request is approved before a thorough analysis of the employee's eligibility is performed.