Why it matters
A Family and Medical Leave Act (FMLA) claim may be triggered where an employer promised coverage before eligibility under the statute took effect, according to a new decision from a Wisconsin federal court. Angel Reif was hired in an administrative role at assisted living facility Brillion West Haven on January 25, 2017. In early January 2018, Reif’s doctor recommended surgery to repair her Achilles tendon. A human resources (HR) employee explained that Reif would not be eligible for FMLA leave until after January 25, 2018, and she scheduled her surgery for January 31. Later the same day, however, the HR employee came back to Reif to say that she was no longer allowed to work until after her surgery, due to concerns that she could hurt herself at work. The HR employee told Reif that her FMLA leave would be approved and she should move up her surgery. Reif followed these instructions, had surgery on January 17, was informed that she was not eligible for FMLA leave and then terminated, when the employer said it would not hold her position during her recovery. Reif filed suit alleging interference and discrimination in violation of the FMLA. Denying the employer’s motion to dismiss, the court held that the assurances by HR to Reif gave rise to viable FMLA claims—even though the plaintiff was not yet eligible for leave under the statute.
Detailed discussion
On January 25, 2017, Angel Reif was hired as an administrative assistant at Brillion West Haven, an assisted living facility in Wisconsin. During the course of her employment, Reif experienced significant pain in her right hip and knee due to an abnormal gait she developed in response to an unsuccessful repair of a torn Achilles tendon she sustained in 2003.
In early January 2018, Reif’s doctor advised her that surgically repairing her Achilles tendon would improve her gait and significantly reduce the pain she was experiencing. Reif met with the human resources (HR) coordinator for Brillion’s parent company and explained the situation. She told the HR employee she planned to undergo surgery when she became eligible for Family and Medical Leave Act (FMLA) leave.
When the HR employee informed Reif she would not be eligible for FMLA leave until January 25, 2018, Reif contacted her doctor and scheduled the surgery for January 31, 2018. Reif informed HR of the date and her intent to apply for FMLA leave.
That same day, after consulting with a superior, the HR employee reached out to Reif and told her she needed to immediately punch out and go home until she was completely healed from surgery. Although Reif was not under any restrictions from her doctor, the HR employee told Reif that she was a “liability” and the company did not want her to injure herself further and file a workers’ compensation claim.
Importantly, the HR employee also told Reif that she needed to schedule her surgery as soon as possible, that she would make sure Reif’s FMLA request was approved and that Reif’s job would be there for her when she returned.
Given her sudden loss of income and in reliance on the assurances, Reif rescheduled her surgery for January 17 and submitted an FMLA application for leave. However, on January 22 she received a letter denying her request for FMLA leave because she was ineligible. Two days later, the company informed Reif it would not hold her job open, and thereafter filled her position.
Reif then filed suit under FMLA, asserting claims of interference and discrimination in violation of the statute. The employer moved to dismiss, arguing that Reif was ineligible for coverage under the statute as she had not been employed for one full year when she made her request for leave.
U.S. District Court Judge William C. Griesbach sided with the plaintiff.
“[The defendant] would be on solid ground as far as the FMLA is concerned if Reif had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave,” the court wrote. “But according to the allegations of the complaint, which remember must be accepted as true at this stage of the proceedings, that is not what happened.”
If Reif’s allegations turn out to be true, then the employer may be estopped from refusing to grant her FMLA leave, the court said.
“Reif alleges more than just silence by her employer,” Judge Griesbach wrote. “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.”
Even without invoking the equitable doctrine of estoppel, the court said it appeared that Reif’s FMLA claims would survive, citing a decision from the U.S. Court of Appeals for the Eleventh Circuit. The 2012 opinion in Pereda v. Brookdale Senior Living Communities, Inc., (LINK: I sent PDF) recognized that without protecting against pre-eligibility interference, “a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible,” a situation that “is contrary to the basic concept of the FMLA.”
The court denied the defendant’s motion to dismiss Reif’s FMLA interference and discrimination claims.
To read the decision and order in Reif v. Assisted Living by Hillcrest LLC, click here.
