Ensure FMLA eligibility before approving leave

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in FMLA Guidelines,Human Resources

Here’s a problem that’s quite common for employers with several work sites spread far apart and one common HR department. Many employees may be eligible for FMLA leave, but some may not be if they work at a location with fewer than 50 employees that’s located within 75 miles of the main office.

Telling one of those employees she can take FMLA leave may obligate you to provide all the associated benefits, even if she isn’t really eligible.

Recent case: Cynthia was termi­­nated shortly after taking what she believed was FMLA leave for child­­bearing. She had received a ­letter from HR letting her know her FMLA request was approved, so she took 12 weeks off. But it turned out that Cynthia worked at a location with fewer than 50 employees. The company terminated her, reasoning it didn’t have to reinstate her.

She sued, alleging failure to reinstate. The employer argued she wasn’t an eligible employee despite the erroneous letter.

The court said the case could proceed, based on a legal concept called equitable estoppel, which essentially says that if someone relies on a mis­­take to her detriment, the other party can’t “take back” the mistake. (Allen v. MidSouth Bank, No. H-12-1618, SD TX, 2013)

Advice: Why risk litigation? Keep careful track of FMLA eligibility. Double-check every request before approving it. Include a disclaimer in your handbook explaining that not every benefit applies to employees at every location.

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