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Your Employee Matters


By October 1, 2008No Comments

The FMLA, although still a source of frustration for employers in regard to its administration, is a common sight in employer handbooks. Federal law requires all employers covered by the FMLA to have an appropriate FMLA policy in any handbook or compilation of written work rules and policies. Employers can certainly offer more generous FMLA-type leave benefits if they so choose. On the other hand, inadvertent exclusion of FMLA eligibility requirements from an employee handbook might subject employers to unintended liability based on implied contract theories.

For example, in Peters v. Gilead Sciences, Inc., when an employee suffered a shoulder injury and underwent corrective surgery, he took what he thought was FMLA leave, as outlined in the employer’s handbook and as further explained to him in letters from the employer outlining his rights under the FMLA. Although the handbook and letters recited the 12-month, 1,250-hour prerequisites for FMLA eligibility, they listed no further requirements or exceptions. In fact, the handbook and letters stated that family and medical leave would be provided to “all employees” who were employed for at least 12 months with a minimum of 1,250 hours worked during the prior 12 months. The other key statutory eligibility requirement, not mentioned in either the handbook or the letters, was that the employee be working at a worksite with at least 50 employees within a 75-mile radius. Because the employer did not, in fact, have 50 employees within 75 miles, technically, the employee was not eligible for FMLA leave under the federal law.

So, when the employer miscalculated the employee’s return-to-work date and replaced him with another employee based on the improper date, the employee sued in federal court alleging violations of the FMLA and a state-law claim for promissory estoppel based on his reliance on the employer’s representations regarding his entitlement to medical leave. Although the FMLA claims were dismissed on summary judgment, the court found that, based on the employee handbook and letters to the employee, the employee could bring a state-law claim for promissory estoppel because of the employee’s detrimental reliance on the letters and handbook. Because the handbook excluded from the entitlement to 12 weeks of leave only those who did not meet the prerequisites of 12 months’ employment and 1,250 hours of work in the preceding 12 months, the court concluded that the employer offered “FMLA-like” leave benefits, using eligibility requirements less restrictive than those in the FMLA (and had offered FMLA-like leave to employees who worked at a worksite that did not have at least 50 employees within a 75-mile radius).

Although employers are entitled to offer benefits more generous than permitted under the FMLA, those employers who don’t intend to do so should ensure that their FMLA policies and related documents reflect exactly the leave that the employer seeks to grant. So if you want to provide only that required by the FMLA, your policies must include all statutory eligibility requirements. HR That Works users should consider using the Sample FMLA Policy.

Courtesy of Shawe Rosenthal, a Worklaw® Network member in Maryland.