policyIf this story won’t cause you bring your FMLA policy up to snuff, then I’ve lost all hope.

FMLA’s Basic Premise

An employee is eligible for FMLA leave if he meets three basic criteria:

  1. He has been employed by a covered employer for 12 months;
  2. He has worked 1,250 hours worked during the 12-month period before his requested leave begins; and
  3. He works at a location where his employer employs 50 or more employees within a 75-mile radius of that location.

With this backdrop in mind, here comes Terry, who works for the Kalamazoo County Road Commission. (Yes, there is indeed a place called Kalamazoo, and it’s one of the most beautiful areas in Western Michigan.)

When it comes to taking FMLA leave from his job at the Road Commission, Terry ordinarily would be out of luck.  Although Terry has been working for the Road Commission for over 12 months and has worked more than 1,250 hours within the past year, he misses the third prong in that he cannot count 50 Road Commission employees within a 75-mile radius around him.

Yet, here’s where the Road Commission let him off the hook: the agency maintained an FMLA policy in which”eligibility” to take FMLA leave was satisfied if you met the first two criteria above (12 months and 1,250 hours).  The Road Commission’s FMLA policy made absolutely no reference to the requirement that 50 employees work within 75 miles.   Here’s the eligibility provision, word for word:

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 Terry’s case, he was under final warning from the Road Commission for failing to complete his work assignments.  So, when he took a leave of absence after experiencing chest pain, he was terminated because he still had not completed his work to the employer’s expectations. Later, when Terry filed an FMLA lawsuit, the Road Commission claimed he was not an eligible employee under the FMLA, since he did not work at a location where his employer employs 50 or more employees within a 75-mile radius.

Typically, this would be a winning argument. However, Terry “pointed to evidence — his sworn affidavit — that he sought medical treatment prior to completing his assignment because the unqualified and unambiguous statements in the [Employee Handbook] led him to believe that he was covered under the FMLA.”  Tilley v. Kalamazoo County Road Commission (pdf)  [I find it hard to believe that Terry had such an enlightening moment at the time he read the FMLA policy, in the unlikely chance he even put eyes on the policy. Rather, it likely was a clever fact that his attorney later memorialized in an affidavit. But I digress…]

Court Ruling

Because the Road Commission left out the third prong of what the court considered an “unambiguous and unqualified” FMLA eligibility provision, a “reasonable person in [Terry’s] position could fairly have believed that he was protected by the FMLA.”  As a result, the court allowed Terry to put his FMLA claims on in front of a jury, even though the protections of the FMLA otherwise would have not applied to him.

Insights for Employers

A tough lesson for the Road Commission. And an expensive one. Instead of paying their employment attorney ~$150 for a mere half hour of time to ensure their policy was compliant with the law, the Road Commission now is likely on the hook for $100,000 more in attorney’s fees and costs. If the Road Commission loses at trial, the expenditure will be even higher.

This decision should be a wake up call to the rest of us: let’s not go another week without conducting a legal review of our FMLA policies.  Since 2009, our policy should have been updated a minimum of two times — to account for the 2009 regulatory changes and in 2010 to account for military family leave changes. With additional changes to the definition of “spouse” under the FMLA to be finalized at some point this year, we should use it as an opportunity to get current with the FMLA.