Worker Fired for Taking FMLA Leave Prior to Eligibility Can Sue

An employee who was not yet eligible for Family and Medical Leave Act (FMLA) time off could go forward with her claims for FMLA interference and discrimination, a federal court in Wisconsin ruled, after the leave was denied and the worker terminated.

A human resources coordinator allegedly told the employee to take time off under the FMLA, even though she was not yet eligible for the leave, and assured her that her job was safe. Even though the employee was terminated before she was protected by the law, it would be unfair to penalize her for relying on assurances given by HR, the court said.

An assisted-living facility in Brillion, Wis., hired the worker as an administrative assistant on Jan. 25, 2017. During her employment, she experienced significant pain in her right hip and knee due to an abnormal gait she had adopted after a prior unsuccessful repair of a tear to her Achilles tendon. On Jan. 2, 2018, the employee's doctor recommended additional surgery.

On Jan. 9, the employee met with the company's HR coordinator and told her of her intent to undergo the surgery when she became eligible for FMLA leave, which would be on Jan. 25, the date on which she would have been employed for 12 months.

The employee then contacted her doctor and scheduled her surgery for Jan. 31. She told the HR coordinator the date of her surgery and of her intent to apply for and use FMLA leave.

On the same day, after consulting with an administrator, the HR coordinator told the employee to immediately "punch out and go home" until she was completely healed from surgery. Although the employee was not under any restrictions from her doctor, she was allegedly sent home because of fears she would injure herself further and file a workers' compensation claim for her pre-existing injury.

The HR coordinator also allegedly told the employee that she needed to schedule her surgery as soon as she could and that she would work with her so that her FMLA leave would be approved. The employee was also purportedly assured that her job would still be there when she returned.

The employee moved her surgery to Jan. 17. On Jan. 10, she submitted an FMLA application for leave with a start date of Jan. 17 and underwent the surgery on that date. Despite the alleged assurances from HR, the employee's request for FMLA leave was denied, and she was subsequently terminated.

The employee sued, claiming that the facility interfered with her right to take medical leave and then discriminated against her by terminating her employment because of her attempt to do so.  

[SHRM members-only toolkit: Managing Family and Medical Leave]

Moving to dismiss, the employer argued that the employee was not an "eligible employee" under the FMLA because she had not been employed for 12 months when the leave was to start. The court denied the motion, allowing the lawsuit to go forward.

The court first noted that the employer "would be on solid ground as far as the FMLA is concerned" if the employee had simply taken off for surgery on her own prior to becoming eligible, but that was not the case.

The HR representative allegedly told the employee to begin her leave immediately, even though there was no medical reason to do so, and encouraged her to change the date of her surgery, assuring her that she would receive FMLA leave and her job would be waiting.

According to the court, if these allegations are true, the employer might be prevented from denying the employee FMLA leave: "It would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave," the court said.

Reif v. Assisted Living by Hillcrest LLC, E.D. Wis., No. 18-C-884 (Nov. 6, 2018).

Professional Pointer: Although the court ruled only that the employee could go forward with her lawsuit, and the employer might still win the case, this decision shows that promises made by HR can impact an employee's FMLA rights.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

[Visit SHRM's resource page on the Family and Medical Leave Act.]