Recently a Connecticut district court indicated that unless the parties settled the case in question, it might find that plaintiff was entitled to FMLA job protections even though she was not eligible for FMLA. Plaintiff had worked for employer/defendant for just under one year when she was advised by her doctor to have Achilles tendon surgery to address hip and knee pain. She advised HR of her intent to take FMLA once she was eligible for the surgery. An HR representative directed her to begin her leave immediately “because she was a liability” even though she was not working under any restrictions. She was also told not to worry about her FMLA being approved and that her job would be waiting for her. Based on those assertions, plaintiff scheduled and underwent surgery eight days before her one year anniversary with the company, although she had initially intended to schedule her surgery after her one year anniversary. While she was on leave the company sent her a letter that she was ineligible for FMLA leave and that they were terminating her.
Plaintiff sued, claiming that she was denied her FMLA rights. The company sought dismissal of the suit on the basis that plaintiff was not entitled to the protections of FMLA because she had not worked there for at least one year. The court, in urging settlement of the case, noted the inherent unfairness in allowing the company to represent to her that she would be entitled to FMLA and then deny her coverage.
The lessons for employers are twofold. One is to ensure that anyone reviewing requests for leave or communicating with employees about FMLA should be well trained in the eligibility requirements. The other lesson is that those employers who are not otherwise covered by FMLA but who have an FMLA or similar type policy may want to remove or revise that policy because they could be conferring rights on employees to which they were otherwise not entitled.