A federal district court in Wisconsin analyzed whether an employee’s Family and Medical Leave Act (FMLA) interference and discrimination claims may exist if the employee was ineligible for FMLA leave at the time the leave request was made.
An eligible employee for FMLA purposes is defined as an employee who has been employed—(i) for at least 12 months by the employer; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period. In addition, the employer may delay FMLA coverage until 30 days after the date that the employee provides notice when the need for FMLA leave is foreseeable at least 30 days in advance and an employee fails to give timely advance notice with no reasonable excuse.
In this case, the plaintiff-employee was working for her employer for approximately eleven months when her doctor advised that the hip and knee pain she was experiencing from her gait could be greatly reduced with surgery. Since the leave was foreseeable, the employee approached her employer for permission to have the procedure immediately. The employer’s human resources coordinator informed the employee that she was not eligible for FMLA leave until she met her one year work anniversary, which occurred in a few weeks. The employee then called her doctor and rescheduled the surgery so that it came after one year of her employment.
On that same day, after consulting with the company’s executive director, the human resources coordinator informed the employee that she needed to go home immediately (even though she had no work restrictions), that she needed to reschedule her surgery immediately, and that her job would be available when she recovered from surgery.
Accordingly, the employee rescheduled her surgery for the following week and submitted FMLA paperwork. In response, the employee’s FMLA leave request was denied because the surgery then occurred prior to the employee working one full year with the employer. As a result, the employee commenced the at-issue action against the employer alleging FMLA interference and discrimination.
The employee’s FMLA claims survived the employer’s motion to dismiss because an employer that misleads an employee by either its silence or actions concerning the employee’s entitlement to family leave cannot rely on the defense of ineligibility to the employee’s claim of entitlement to family leave.
In this case, the employer’s misdirection to the employee, whether malicious or not, allowed the employee’s claim to proceed. Employers are advised to carefully and accurately inform employees of their rights under the FMLA and any other state or federal employment law.
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