We all know that to be eligible for FMLA leave:
- The employee must be employed by a covered employer for 12 months.
- The employee must have worked 1,250 hours in the past 12 months.
- The employee must work at or within 75 miles of a worksite employing 50 or more employees (the “50/75 rule”).
What if the employer’s FMLA policy does not list one or more of these eligibility factors? According to one Federal Appeals Court, if an employee takes FMLA leave in reliance upon an incomplete list of FMLA eligibility requirements, that employee may be entitled to FMLA protection despite not actually being eligible under the law.
The Missing Eligibility Requirement in the FMLA Policy
In Tilley v. Kalamazoo County Road Commission, employee Terry Tilley had already received a final warning and was under a directive to deliver certain completed work assignment to his supervisor by August 1 or he might be terminated.
On the morning of August 1, Tilley began experiencing what he felt were symptoms of a heart attack and he left work to seek medical treatment. He then returned home and had his wife call the employer to say that he would not be returning to work until August 5. He applied for FMLA leave but the employer denied it, stating that since he worked at a job site that did not meet the 50/75 rule, he was ineligible for FMLA leave. Tilley was then terminated for failing to meet his August 1 work deadline.
The Court Eliminates The Road Commission’s Eligibility Defense
Tilley sued for interference with his FMLA rights. The employer countered, of course, that Tilley had no FMLA rights since he did not meet the 50/75 rule and therefore was ineligible for FMLA protection. Tilley replied that the employer’s FMLA policy only listed the first two eligibility criteria set forth above and omitted the 50/75 rule. He thought he was covered by the policy when he took his leave, and had he known that he was not protected by FMLA, he would have returned to work to finish off the last few details of his assignment.
Though the court acknowledged that Tilley technically be ineligible for FMLA, the absence of the 50/75 rule in the written policy prevented the employer from relying upon it to deny Tilley FMLA coverage. The appeals court reasoned that since Tilley had no independent knowledge of the 50/75 rule, “a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA” based on the FMLA policy as written. Therefore, fairness demanded that the employer be barred from using the 50/75 to deny Tilley’s eligibility for FMLA and allowed Tilley to pursue his FMLA claims despite not actually meeting the legal requirements for FMLA protection.
Bottom Line
Although Sixth Circuit decisions do not actually apply to Minnesota employers, the federal courts in this state could elect to borrow the reasoning of this case. Even if you feel that the 50/75 rule will never come into play because you only have one work site, don’t take the chance on an inadequate policy if and when your business circumstances change. Make sure that your FMLA policy properly lists all three eligibility requirements to avoid surprises like the one that the Sixth Circuit served up to the employer in this case.