Employers Beware: Granting An Ineligible Employee FMLA Leave May Bar An Employer From Later Asserting A Defense of Non-Coverage

A federal court recently considered whether an employer that granted an employee's request for FMLA leave was later equitably estopped from arguing that the employee was ineligible for leave under the FMLA because the employee had relied on the leave designation to his detriment.  

In Harvey v. Wal-Mart Louisiana LLC, 2009 WL 3171099 (W.D. La. 2009), the plaintiff suffered from degenerative arthritis in his lower back.  He took two leaves of absence in 2005.  The first leave from February 22 to April 12 was due to back pain, and the plaintiff wanted to evaluate whether to have surgery.  The plaintiff decided not to have surgery, and his leave was characterized as a "personal", not medical, leave.  The second leave began on September 1 and was scheduled to end on November 19.  The plaintiff requested to return to work early, but his request was denied.  He took the second leave to career his 38-year-old daughter, who was suffering from intracranial hypertension, which inhibited her ability to care for her two minor children.  The leave was counted as FMLA leave, and approved as such by the plaintiff's supervisor.  Despite this, the plaintiff was not restored to his prior position for six weeks following his leave, and he sought back pay for the break in service, which was denied by his employer. 

The plaintiff filed suit against Wal-Mart alleging, among other things, that it violated the FMLA by failing to restore him immediately to his prior position following his second leave of absence.  Wal-Mart argued in its motion for summary judgment that the plaintiff was not eligible for FMLA leave for his second leave of absence because he had not worked 1,250 hours during the 12-month period prior to his leave, and that the reason for his leave--to care for his grown daughter and her children--did not qualify for FMLA leave.  The plaintiff countered, in part, that Wal-Mart was equitably estopped from asserting a defense of non-coverage because it had previously approved his second leave of absence as FMLA leave and he had relied on the designation to his detriment. 

The Harvey court held that Wal-Mart was not equitably estopped from asserting the plaintiff's non-coverage as a defense.  In so holding, the court relied upon the fact that the plaintiff was not aware until after his second leave of absence that his leave had been designated as FMLA leave.  Accordingly, the court held that he did not rely upon any representation by Wal-Mart in deciding to take his second leave of absence.  Moreover, the court held that the fact that Wal-Mart did not approve the plaintiff as an "eligible employee" under the FMLA, and only counted the leave as FMLA leave, further required a finding that Wal-Mart could assert a defense of non-coverage.  Ultimately, the court held that the plaintiff had not established that he had worked 1,250 hours in the 12-month period prior to his second leave of absence, and he therefore had no rights under the FMLA.

This case is instructive not so much for its holding, as for its discussion of the instances in which equitable estoppel would apply and bar an employer from asserting a defense of non-coverage.  If the plaintiff had been aware prior to or during his second leave of absence that his leave had been designated as FMLA leave, and that he was determined to be an eligible employee under the FMLA, and he did not return to work as a result, this case suggests that Wal-Mart would have been barred from subsequently arguing that the plaintiff was not eligible for FMLA leave.  Employers need to ensure that, when confronted with a request for potentially FMLA-qualifying leave, they assess carefully whether the employee is eligible for leave, and whether the reason for the leave is FMLA-qualifying.  If not, they may be barred from subsequently arguing in a lawsuit that the employee was ineligible for FMLA leave.