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Under the FMLA, only employers that have 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. The requirement is commonly known as the “50/75 rule.”

Can an employer that has fewer than 50 employees within 75 miles of the company’s work site willingly yet unwittingly be bound to provide its employees with FMLA rights and benefits? Maybe so.

In Reaux v. Infohealth Management Corp., a federal judge recently ruled that employers that are not otherwise required to provide FMLA leave could wind up subjecting themselves to the FMLA by promising it to employees.

By the book

Infohealth Management Corp. was not obligated to provide FMLA leave to its employees because it did not satisfy the 50/75 rule.

However, Infohealth’s employee handbook said all employees could take FMLA leave for a serious health condition (including for the birth of the employee’s child), provided that they satisfied FMLA eligibility requirements.

Like the federal law, Infohealth’s policy said employees were eligible if they had worked for the company for at least 12 months and had worked a minimum of 1,250 hours over the previous 12 months.

Deborah Reaux, an Infohealth administrative assistant, became pregnant and requested maternity leave. Her supervisors assured her that she could take “FMLA leave,” and she did once her child was born on Aug. 1, 2006. She was due to return to work on Sept. 11, 2006. For unspecified reasons, Infohealth terminated her on Sept. 7, 2006.

Reaux sued Infohealth in federal court, alleging the company had violated the FMLA by terminating her while she was on job-protected leave.

Motion denied

Infohealth moved to dismiss the suit, arguing that under the 50/75 rule, Reaux was not an “eligible employee” and was thus not on a job-protected leave. Infohealth also argued that the employee handbook contained an at-will employment disclaimer stating the company could terminate its employees at any time and for any reason.

The court didn’t buy it. Because “Infohealth allegedly told Reaux that she could take FMLA leave, Reaux did so, and was fired while she was still on leave,” the court said the company was “equitably estopped” from raising the 50/75 rule as a defense.

The court said the “at-will” language didn’t matter. Infohealth’s position was “at odds with the well-established rule that regardless of whether an employee may be terminated ‘at will,’ the FMLA ‘prohibits an employer from interfering with an employee’s attempt to exercise her right to medical leave.’”

Now Reaux’s suit will move forward.

Review your policies and handbooks for anything that could give employees rights they’re not entitled to. Numerous courts have ruled that employers that voluntarily offer their employees benefits that they are not otherwise entitled to can’t easily renege on the offer later—especially if they’re written in a policy or handbook.


Author: David B. Ritter, Esq., chairs the Labor and Employment Practice Group at Neal Gerber Eisenberg LLP in Chicago. He is editor of HR Specialist’s Illinois Employment Law newsletter.  

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