In a recent case, the United States Court of Appeals for the Seventh Circuit recognized that broad employer Family and Medical Leave (FMLA) policies can bind an employer to provide FMLA protections to employees who might otherwise not be eligible under the FMLA. See Peters v. Gilead Sciences, Inc., Case No. 06-4290 (7th Cir. July 14, 2008).

Gilead Sciences published an employee manual that included an FMLA policy stating “[t]o be eligible for FMLA benefits, an employee must have worked . . . for a total of 12 months and have worked at least 1,250 hours over the previous twelve months . . . You will retain your employee status during the period of your FMLA Leave . . .You will be guaranteed reinstatement in your position . . .”

In 2003, Steven Peters took leave from Gilead Sciences after a work-related injury and received an FMLA letter from Gilead Sciences restating the policy in the employee manual.  Gilead Sciences replaced Peters before the full twelve weeks of FMLA leave expired and Peters filed suit.

The Family and Medical Leave Act excludes from coverage employees at worksites at which less than 50 employees are employed, if the total number of employees employed by that employer within 75 miles is less than 50. The parties ultimately agreed that Peters did not meet the requirement for coverage under the FMLA, because Gilead Science did not employ 50 persons within 75 miles of Peters’ workplace.

Significantly, neither Gilead Sciences’ employee manual, nor the FMLA letter received by Peters, made any reference to the 50 employee/75 mile statutory prerequisite for coverage. The Seventh Circuit noted that even though Peters’ FMLA claim might not be actionable based on this prerequisite, the court remanded the case for consideration of Peters’ state law promissory estoppel claim.

A promissory estoppel claim requires (1) a promise (2) made with the expectation that the promisee will rely on it (3) which induces reasonable reliance (4) of a definite nature and (5) injustice can be avoided only if the promise is enforced.

The Seventh Circuit noted that Gilead Sciences’ FMLA policy (and the letter to Peters guaranteeing reinstatement), made no reference to a 50 employee/75 mile prerequisite.  Therefore, the court found that the promise of reinstatement in the policy and letter could be the type of promise to support a promissory estoppel claim, even though Peters admitted that he was not eligible for FMLA leave under the statute.

As the court noted, there “is no reason employers cannot offer [, or promise,] FMLA like leave benefits using eligibility requirements less restrictive than those in the FMLA.”

This case should serve as a reminder to employers to carefully review their FMLA policies to make certain that their policies reference all restrictions included in the FMLA. The case also serves as an important reminder that employers should verify whether, and to what extent, an employee on leave is actually eligible for FMLA statutory protections, before sending a letter confirming such coverage.

The Arent Fox employment law group assists employers with the drafting of leave policies and in addressing coverage issues under the FMLA. If you have any questions about this issue or any other leave issue, please feel free to contact us.

Samuel K. Charnoff
charnoff.samuel@arentfox.com
202.857.6221