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Read Your FMLA Policy Again: Does it Grant More Rights Than You Intend?

By Mindy Chapman, Esq., Mindy Chapman & Associates
7/25/2008 - 3:30pm
FMLA

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

When was the last time you read your organization’s Family and Medical Leave (FMLA) policy? As a new case shows, it could be creating a contract for employees to gain FMLA-like protection even if they normally wouldn’t be eligible for FMLA under the law. If it does, get ready to stand by your promise …

Case in Point: Steven Peters worked out of his Indiana home for a pharmaceutical manufacturer headquartered in California. He sold company products to doctors in the Midwest. When Peters suffered neck and shoulder injuries in a work-related car accident, he filed a workers’ compensation claim. Later he returned to work with restrictions but then was required to undergo surgery.

Peters requested FMLA leave and his employer granted it. The FMLA covers organizations with at least 50 employees within 75 miles of the worksite. The law says that for employees to be eligible for FMLA, they must have worked at least 1,250 hours in the past 12 months for that employer. (Of course, employers can set their own, less-restrictive qualifications for FMLA leave.)

The employee handbook distributed by Peters’ employer stated that all employees were eligible for FMLA leave if they worked 1,250 hours in the previous 12 months. That was the only requirement. It didn’t mention of the FMLA statutory requirement that employers have at least 50 employees within 75 miles to be eligible.

The company sent Peters a letter confirming his FMLA leave and promising Peters he would retain his employee status during the FMLA leave.

Peters requested a second FMLA leave related to his injury, which was granted. But prior to his return, the company hired his replacement.

Peters sued under the FMLA. The company responded by claiming that Peters wasn’t covered by the FMLA because the 50/75 requirement wasn’t met. Peters argued that the company should have included that requirement in the handbook if it was company policy. (Peters v. Gilead Sciences, 7th Circuit, 7/14/08)

What happened next … and what lessons can be learned?

A lower court dismissed the case and sided with the company. But the 7th Circuit appellate court said, “Not so fast.” It threw the book at the employer—the employee handbook that is.

The court noted that the employee handbook promised employees 12 weeks of medical leave equivalent to the leave guaranteed by the FMLA. The policy mentioned the hours limitation, but didn’t mention the 50/75 miles restriction.

“There is no reason employers cannot offer FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA,” said the court. While it appeared that the employer did not intend to be more generous than the law, that’s exactly what their policy created.

3 Lessons Learned … Without Going to Court

1. Read your policies. Compare your compliance policies to the laws themselves. That way, you make sure your organization is in compliance but doesn’t create greater rights than the law provides (unless your company intends to do so). If you make promises beyond the laws, courts can hold you to them, as this case shows.

2. Every word counts. The employee handbook promised eligibility for all employees who meet the 12 month/1,250 requirement. All means all.

3. Missing words count, too. The employee handbook did not state any exceptions to the eligibility. The critical language was missing. Courts hear silence.

Tags: employee handbook, employees, fmla, fmla leave, hr

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