Holding Employers To Their FMLA Promises -- The Theory Of "Estoppel" Under The Family And Medical Leave Act

By harley erbe

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As Des Moines FMLA lawyers, we know that employers make many mistakes when it comes to the Family Medical Leave Act.  Most frequently, employers' FMLA violations concern denying someone FMLA time who should've received it or disciplining or wrongfully terminating an employee in retaliation for taking FMLA-protected leave.  But employers occasionally grant FMLA leave by mistake when they had no legal obligation to do so.  Then they discipline or fire the employee for missing too much work without FMLA protection, even though the employer initially told the employee that FMLA time was available.  That's not fair to the employee, who thought that work could be missed without repercussions based upon the employer's FMLA representations.  Is there anything the employee can do about that? 

One remedy for employees in these situations is a legal claim called "equitable estoppel."  Equitable estoppel is available to prevent an employer from contesting an employee's right to assert a claim under the FMLA.  At its base, the estoppel theory refers to situations in which an employer has represented that it granted an employee leave, inducing the employee's reasonable reliance on that representation, and later disciplines or terminates the employee for missing work. 

Courts have applied the equitable estoppel theory to various FMLA situations.  One example is an employer that told an employee he could have 34 weeks of FMLA time, when in fact the law only entitled him to twelve weeks.  Equitable estoppel has also been applied to the issue of whether an employee had a serious health condition, a necessary predicate under the FMLA.  Employers that initially allow FMLA leave may later be prohibited that the employee was not entitled to FMLA because the employee didn't have a serious medical condition.

The theory of equitable estoppel under the FMLA is not without its limits.  An estoppel-based FMLA claim cannot succeed based on vague employer representations regarding leave.  There must be some reason for the employee to reasonably understand from the employer's statements that the employee's absence will be protected by the FMLA.  The reason for that rule is that a reasonable person would not be entitled to rely on vague employer representations that don't tie into FMLA leave.

Further, employees need to give employers adequate notice that they seek FMLA and not some other type of employment leave.  An equitable estoppel claim fails unless the employee first triggers the FMLA's protections by providing the employer with adequate and timely notice that FMLA leave may be necessary.  To permit otherwise would enable employees to blindside employers by taking a generic leave request and retroactively transforming it into an FMLA claim.  Thus the employer must be made aware that the absence is due to a serious illness so the employer can distinguish it from ordinary sick days or other types of non-FMLA employment leave.

Finally, and for similar reasons, to assert estoppel under the FMLA employees must prove that they actually and reasonably believed that the employer had granted FMLA time and not some other type of employment leave.  This issue is determined based upon the totality of the circumstances.  A specific employer reference to the FMLA or certain FMLA words or phrases is not required, but the employee must reasonably believe that FMLA leave is what the employer had in mind, not some other type of leave. 

Please feel free to contact us if you need the assistance of a Des Moines employment lawyer.

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