Perils of a Poorly Drafted FMLA Policy

Practical Law Legal Update w-002-7157 (Approx. 7 pages)

Perils of a Poorly Drafted FMLA Policy

by Practical Law Labor & Employment

Published on 28 Jun 2016 • USA (National/Federal)

Resources and guidance to help employers draft a Family Medical Leave Act (FMLA) policy and otherwise comply with the FMLA.

Employers should review their FMLA policies to ensure they are legally compliant and clearly drafted. A recent unpublished Third Circuit decision provides a cautionary tale of what can happen when an employer has a poorly drafted FMLA policy. In Palan v. Inovio Pharmaceuticals Inc., the employer was not required by statute to provide FMLA leave to the plaintiff because it employed fewer than 50 employees at or within a 75-mile radius of the plaintiff's worksite (, at *2 (3d Cir. June 23, 2016)). However, the court held that a statement in the employer's handbook that its family leave policy "complies with the provisions of the [FMLA]:"

Indicated that the employer voluntarily offered FMLA leave to the plaintiff even though it was not required to do so.
Was likely to mislead an employee to believe that he was an eligible employee for FMLA purposes.
Could form the basis of an equitable estoppel claim, which prevents an employer from denying an employee's eligibility as a defense to an FMLA claim.

(, at *3.)

The plaintiff's claim ultimately failed because he was unable to prove detrimental reliance on the misrepresentation (, at *4). Still, the employer engaged in costly litigation to defend a claim that that could have been avoided by having a well-drafted FMLA policy that made eligibility requirements clear and did not inadvertently suggest a more generous leave policy than required by the FMLA.

Other circuits have recognized an equitable estoppel theory in the FMLA context based on:

A statement in an employee handbook that "[e]mployees covered under the [FMLA] are full-time employees who have worked for the [employer] and accumulated 1,250 work hours in the previous 12 months," without qualifying this statement by adding that employees would only be covered by the FMLA if they worked at or within 75 miles of a worksite with at least 50 employees (Tilley v. Kalamazoo Cty. Rd. Comm'n, 777 F.3d 303, 311 (6th Cir. 2015)).
An employer's statement in a written memorandum that the plaintiff, who did not work at or within 75 miles of a worksite with at least 50 employees, was an "eligible employee" under the FMLA in response to the plaintiff's request for leave (Minard v. ITC Deltacom Commc'ns, Inc., 447 F.3d 352, 358 (5th Cir. 2006); see also Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551, 557 (6th Cir. 2009)).

These cases highlight the importance of:

Maintaining a complete understanding of FMLA legal requirements.
Drafting an FMLA policy that clearly defines both the leave offered by the employer and an employee's eligibility for it.
Periodically reviewing the number of employees at different worksites and determining how this affects FMLA eligibility.
Training managers and human resource representatives on how to follow FMLA policies and procedures to avoid misrepresentations about an employee's FMLA eligibility.

For Practical Law's resources to assist employers with drafting an FMLA policy, see Standard Document, Family and Medical Leave Policy.

For an overview of the FMLA, see Practice Note, Family and Medical Leave Act (FMLA) Basics.

For Practical Law's sample forms and letters that employers may use throughout the FMLA process, see Standard Documents:

For certification forms that employers may use, see Standard Documents:

For Checklists employers may use during the FMLA process, see:

For more information about litigating an FMLA claim, see:

For resources that help employers understand state leave laws and other federal laws that may be implicated by an employee's request for leave under the FMLA, see:

Perils of a Poorly Drafted FMLA Policy | Practical Law