Are Employers Estopped from subsequently withdrawing Approval of Leave under the Family and Medical Leave Act (“FMLA”)?
Broadly speaking, the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., entitles full-time employees who have worked for an employer with fifty or more employees to up to twelve weeks of unpaid leave for certain serious medical conditions or to provide care for certain close relations with such conditions. The FMLA also prohibits employers from interfering with an employee’s exercise of her rights under the statute and from retaliating against employees for doing so. While the FMLA thus provides significant protections to certain employees for various qualifying medical conditions, it can often be difficult to determine whether a particular employee is entitled to leave under the statute.
Partly because of this difficulty, and partly because of the potential burden that the statute places on the employer, employers often experience a type of buyer’s remorse after initially granting an FMLA leave of absence. As a result, employers may be motivated to question an employee’s eligibility under the FMLA after the fact, i.e. after the employee has already taken some or all of her approved leave.
The question then arises: what rights does an employee have if her employer subsequently determines that she was never actually eligible for FMLA leave in the first place?
Unfortunately for employees, the language of FMLA appears to suggest that only eligible employees may state a cause of action for interference or retaliation under the FMLA. See 29 U.S.C. § 2617(a)(1) (“any employer who violates section 2615 [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][which provides that it “shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” under the FMLA] shall be liable to any eligible employee affected.”) (emphasis added).
Nevertheless, although the United States Court of Appeals for the Third Circuit has yet to reach the question, several courts have invoked the doctrine of equitable estoppel to bar employers from retroactively denying FMLA leave on the basis that the employee was not eligible. In Kosakow v. New Rochelle Radiology Association (2d Cir. 2001), for example, the Second Circuit reversed a district court decision which had upheld an employer’s termination of an employee who left work on an approved FMLA leave on the basis that she failed to work the minimum required number of hours (1250) in the twelve months prior to the beginning of her leave. In so holding, the Second Circuit found that the elements of equitable estoppel had been met where the employer failed to provide the employee with sufficient information for her to determine whether she was in fact eligible for leave under the FMLA. Because the employee might have worked enough hours to qualify if she had the appropriate information, the employer’s failure to comply with its statutory duty to inform amounted to a material misrepresentation which induced the employee’s detrimental reliance, resulting in significant injustice. More recently, in Dawkins v. Fulton County Gov’t (11th Cir. 2013), although the Eleventh Circuit explicitly declined to decide whether equitable estoppel applies to the FMLA, it assumed the doctrine did apply when reviewing the district court’s holding that the plaintiff had failed to establish a prima facie case of equitable estoppel.
Whether the Third Circuit is likely to follow this developing trend is unclear. See Sinacole v. IGate Capital, 2006 U.S. Dist. LEXIS 91538, *24 (W.D. Pa. Dec. 19, 2006) (suggesting, in dictum, that the Third Circuit would likely apply equitable estoppel against an employer that “misrepresents to [an employee] that she could take FMLA leave and then renege[s] on its word”). It is also uncertain whether or not the doctrine would extend, where applicable, to all ineligible employees, irrespective of the reason(s) for their ineligibility.
The bottom line is that an employee who has been disciplined and/or discharged after relying upon her employer’s approval of FMLA leave should not automatically assume that she is without redress simply because her employer retroactively (and correctly) determines that she was not eligible for FMLA leave in the first place.
If you believe you have been disciplined and/or terminated by your employer for taking medical or family leave please contact the Murphy Law Group at (267) 273-1054 for a free consultation.