Employers may voluntarily extend legal rights to employees which the employees would not otherwise be entitled to.  Employers of less than 50 persons may provide Family & Medical Leave because they believe it is the right thing to do for their employees.  More often, employers of less than 50 persons include Family & Medical Leave Act policies and terminology in handbooks because they cut and paste from another handbook or download an online template without an understanding of the legal implications.

If your company is a small employer, but has an FMLA leave policy printed in its handbook, you may be entitled to leave and the FMLA’s protection against interference and retaliation based on a legal principle called “estoppel.”  Estoppel simply means that an employer cannot say one thing and do another.  If the employer grants leave, the employer cannot thereafter deny a return to one’s job at the end of twelve weeks claiming the FMLA never applied.  The employer is prevented or “estopped” from arguing it is not a covered employer because of its earlier conduct.

However, the courts generally require reliance by the employee on the employer’s conduct before they will grant relief on an estoppel theory.  Consider the following examples:  Case #1 – Jenny Jones wishes to take leave to have elective surgery performed.  She reads her employee handbook and sees there is an FMLA leave policy.  However, the employer denies leave and tells her the policy was included in the handbook in error.  Under these circumstances, Jenny probably does not have a good case against her employer on an estoppel theory because she has not yet acted in reliance on any promise made by the employer.  It is unlikely anyone accepts a job based on the existence of FMLA leave and an employer is free to change its policies at any time. 

Case #2 – Let’s change the facts a little.  The employer grants Jenny FMLA leave.  After her surgery and while she is still recuperating, her employer calls her and informs her he needs her at work the next day.  If she does not return to work, she no longer has a job.  Jenny fails to return to work and is fired.  Now Jenny has a strong case against her employer.  She relied on the promised leave to undergo the surgery and have up to twelve weeks to recuperate.  The employer cannot change the rules and force her to return to work before the leave expires or fire her for not doing so. 

Because everyone is an individual and no one’s medical leave is quite the same, FMLA cases are fact sensitive.  Courts are reluctant to impose laws on employers who would not otherwise have to comply with them and will insist on employees demonstrating reliance on the employer’s conduct and harm resulting from it.  Small employers who do not wish to subject themselves to the FMLA should review their handbooks and remove any unintentionally included leave policy before it becomes a far more expensive error to fix.  And remember, employers of 50 or more persons must comply with the FMLA whether they like it or not.