- An administrative assistant for an assisted living facility who claimed that HR told her to take leave under the Family and Medical Leave Act (FMLA) two weeks before she qualified will go to trial after a judge ruled that it would be unfair to allow an employer to defeat her lawsuit by claiming that she was not eligible for FMLA leave (Reif v. Assisted Living by Hillcrest LLC. dba Brillion West Haven, No. 18-C-884 (E.D. Wisc., Nov. 6, 2018)).
- According to court documents, Angel Reif was advised that surgery would correct pain in her hip and knee. When HR told her that she didn't qualify for FMLA leave until Jan. 25, 2018, Reif scheduled the surgery for Jan. 31. An administrator, however, became concerned that Reif would injure herself further and file a workers' compensation claim; an HR representative sent her home and told her to schedule her surgery as soon as possible. HR also informed her that it would work with her so that her FMLA leave would be approved and that her job would still be there for her when she returned. Reif rescheduled the surgery for Jan. 17 and submitted an FMLA leave request for Jan. 10. On Jan. 19, Reif received a letter stating that she was not eligible for FMLA leave and on Jan. 24, she was told that her job would not be held for her. On Feb. 9, she was told that her position had been filled. Reif sued, alleging that the employer had interfered with her right to take medical leave under the FMLA.
- The employer asked the court to dismiss Reif's FMLA claims because she was not eligible for the law's protections. But the court said 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."
Employers must be careful with promises because they can be held liable if they don't ultimately provide what they've offered. Earlier this year, a judge refused to dismiss an employee's FMLA lawsuit in a case involving confusion about how much leave she had available. The employer's handbook had one section discussing employees' entitlements to 12 weeks of unpaid FMLA leave, while another section offered workers eight weeks of paid maternity leave, with the option to take four more weeks unpaid. The employee didn't realize that the employer considered the leaves to run concurrently and was fired when she didn't return to work after 12 weeks.
While Reif is still in its early stages, it presents a cautionary tale to employers about the impact that HR comments can have on employee rights to FMLA leave, Keith Kopplin, an attorney with the Milwaukee office of Ogletree Deakins, wrote for the firm.