Expanding Eligibility: Is Your FMLA Policy Ripe for Misinterpretation?
Can the wording in your handbook make employees otherwise ineligible for FMLA leave eligible? The Sixth Circuit (which has appellate jurisdiction over district courts in Kentucky, Michigan, Ohio and Tennessee) has answered this question in the affirmative, and employers everywhere must take heed and review their FMLA policies.
TILLEY V. KALAMAZOO COUNTY ROAD COMMISSION –
Tilley v. Kalamazoo County Road Commission, 777 F.3d 303 (6tCir. 2015), arose because Terry Tilley failed to complete several job assignments in a timely manner. On the morning that Tilley was supposed to complete his final assignment, Tilley claimed that he thought he was having a heart attack and had a coworker drive him to the hospital. As a result of his hospital stay, Tilley never submitted the final assignment.
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Is Your FMLA Policy Ripe for Misinterpretation?
Can the wording in your handbook make employees otherwise ineligible for FMLA leave eligible? The
Sixth Circuit (which has appellate jurisdiction over district courts in Kentucky, Michigan, Ohio and
Tennessee) has answered this question in the affirmative, and employers everywhere must take heed and
review their FMLA policies.
TILLEY V. KALAMAZOO COUNTY ROAD COMMISSION
Tilley v. Kalamazoo County Road Commission, 777 F.3d 303 (6th Cir. 2015), arose because Terry Tilley
failed to complete several job assignments in a timely manner. On the morning that Tilley was supposed
to complete his final assignment, Tilley claimed that he thought he was having a heart attack and had a
coworker drive him to the hospital. As a result of his hospital stay, Tilley never submitted the final
Following his absence, the Road Commission sent Tilley FMLA paperwork including a cover letter and a
“Notice of Eligibility and Rights & Responsibilities,” which both stated that Tilley was eligible for FMLA
leave. The Road Commission then terminated Tilley for failing to complete his assignments in a timely
manner. Tilley filed suit claiming that, among other things, the Road Commission had interfered with his
right to take FMLA leave. Tilley argued that had he known he was not FMLA eligible, he would have
finished his assignment rather than go to the hospital for his suspected heart attack.
Generally, protection under the Family Medical Leave Act (“FMLA”) extends only to employees who are
“eligible” as defined by the statute. To be eligible, an employee must have worked for the employer for at
least 12 months, worked at least 1,250 hours for the employer during the 12 month period immediately
preceding leave, and worked at a location where the employer had at least 50 employees within 75 miles.
The FMLA clarifies that for the 50/75-Employee Threshold, the number of employees is determined at the
time the employee gives notice of the need for leave. 29 C.F.R. § 825.110(e). The Sixth Circuit readily
concluded that Tilley was ineligible for FMLA leave, because the Road Commission employed less than 50
people within 75 miles of Tilley’s workplace when he requested FMLA leave. In fact, the court
unequivocally stated that “as a matter of law, Tilley was not an ‘eligible employee.'”
Nevertheless, the Sixth Circuit went on to find that Tilley had an FMLA claim anyway. While Tilley was
unquestionably ineligible for FMLA leave, the Sixth Circuit applied the doctrine of “equitable estoppel” to
find merit in Tilley’s otherwise groundless claim. The court noted that in certain circumstances, equitable
estoppel works to prevent employers from raising non-eligibility as a defense where the employer has
made statements about an employee’s FMLA eligibility.
Unfortunately, the Road Commission’s Personnel Manual failed to include the 50/75-Employee Threshold
requirement, which the court found to be a clear misrepresentation as to Tilley’s eligibility for FMLA
benefits. The Manual simply stated that “Employees covered under the Family and Medical Leave Act are
full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the
previous 12 months.” In the court’s estimation, this was an unambiguous statement that Tilley was
eligible, on which Tilley reasonably relied.
The court did note that there were “obvious reasons” to discredit Tilley’s claim that he would not have
gone to the hospital for his suspected heart attack had he known that he was not FMLA eligible.
Nonetheless, the court found that the question of Tilley’s credibility was one for the jury. In determining
that a reasonable person in Tilley’s position could believe that he was FMLA eligible, the court further
noted that the Road Commission had sent Tilley two communications stating that he was FMLA eligible.
If nothing else, Tilley is a stark reminder to review the FMLA policy in your employee handbook. As a
starting point, the FMLA requires employers to give employees notice of their rights under the FMLA.
Specifically, the Department of Labor requires employers to display a poster notifying employees of the
FMLA’s provisions. Covered employers must also provide a general notice containing the same
information included in the poster in their employee handbooks.
Accordingly, your handbook should include a clear statement of which employees are eligible for FMLA
leave. The Department of Labor’s poster provides the following language on eligibility requirements:
“Employees are eligible if they have worked for a covered employer for at least 12 months, have 1,250
hours of service in the previous 12 months, and if at least 50 employees are employed by the employer
within 75 miles.” In Tilley’s wake, employers would be wise to include this language in their FMLA policies
For more information, contact:
Stephen Price in Nashville at (615) 724-3223 or firstname.lastname@example.org
Sharonda Childs in Birmingham at (205) 458-5248 or email@example.com
Matthew Scully in Birmingham at (205) 458-5321 or firstname.lastname@example.org
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
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