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Hold the Phone: Employer Liable for FMLA Claim Even When Employee Was Not Eligible

Did you know an employer can be liable for an FMLA claim even when the employee is not actually eligible for FMLA?  Below is how as a Wisconsin employer found this out, the hard way. 

The Facts

Angel Reif was hired by Assisted Living by Hillcrest LLC (“the Company”), a company operating an assisted living facility in Wisconsin, as an administrative assistant on January 25, 2017.  During the course of her employment she experienced significant pain in her right hip and knee which impacted her ability to walk.  On January 2, 2018, her doctor advised her surgery would significantly reduce her pain.

On January 9, 2018, Reif met with an HR representative and stated her intent to take FMLA.  HR told Reif she was not eligible for FMLA leave until January 25, 2018 since she had not yet been with the company a year.  To be eligible for FMLA, an employee must (1) have been employed for at least 12 months by the employer and (2) have at least 1,250 hours of service with the employer during the previous 12 month period.  As a result of her then-current ineligibility, Reif scheduled her surgery for January 31, 2018.

Later that day, HR, after consulting with the Company’s executive administrator, informed Reif she needed to immediately “punch out and go home until [she was] completely healed from surgery.”  HR told Reif she was a liability and the Company did not want her to injure herself further and file a worker’s compensation claim for a pre-existing injury.  HR also told Reif to schedule her surgery as soon as possible and the Company would work with her on her FMLA.

Reif moved her surgery up to January 17th and submitted an FMLA application beginning January 17th.  She underwent surgery on that date. On January 22, 2018, Reif received a letter from the Company acknowledging her request for FMLA but noting she did not qualify.  On January 25, 2018, the Company received a note from Reif’s doctor stating she was able to return to work full time with some restrictions on January 22, 2018.  On February 9, 2018, the Company informed Reif they had filled her position.  Reif filed claims against the Company for FMLA interference and retaliation as well as various state law claims. 

The Ruling

The Court refused to grant the Company’s motion to dismiss because it was the Company which caused this whole problem.  The Court noted “[i]t would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

Employer Takeaways

This case is a classic example of bait and switch.  If the facts Ms. Reif alleges turn out to be true, the employer assured her she would be entitled to FMLA despite her non-eligibility and then they fired her when she took them up on their offer.  It should surprise no one the Court did not condone this behavior and actually said the employer could be liable to Reif for FMLA claims even though she was actually not eligible.    

Additionally, while the Company was understandably concerned Ms. Reif might be further injured on the job, it had no right to force her to take FMLA immediately.   This type of paternal action simply is not permitted.  If faced with this fact pattern in the future, employers have options.  First, insist on the employee meeting eligibility requirements or not, but stick with your decision.  Second, determine if the employee is creating a safety risk to herself or others.  If so, you can force the employee to leave work.  If not, as was probably the case here, let the employee work for as long as she wishes.  Paternalism is just not allowed.  However, these cases are challenging.  This is a good time to get competent counsel before making any decisions. 

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560