When might an employee who works for an employer with less than 50 employees within 75 miles be eligible for FMLA leave? When the employer is prohibited from denying the employee’s eligibility, according to a recent decision by the United States Court of Appeals for the Sixth Circuit. Tilley v. Kalamazoo Country Road Commission et al (6th Cir. January 26, 2015).

After being terminated, the plaintiff brought a host of legal claims against his former employer, including interference and retaliation claims under the FMLA. Because the employee had less than 50 employees within 75 miles, the employee was not eligible for FMLA leave and the court granted summary judgment to the employer on the FMLA claims.

However, the employer’s handbook stated that “[e]mployees covered under the [FMLA] are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” No mention of the FMLA eligibility requirement that the employee work at a location which has 50 employees within 75 miles. The plaintiff argued the employer was “equitably estopped” from denying his eligibility for FMLA leave based on this omission.

The court denied the employer’s motion for summary judgment on the equitable estoppel claim. The company’s “unqualified statement” that individuals such as the plaintiff were eligible for the FMLA satisfies the equitable estoppel requirement that there be a misrepresentation, said the court. The plaintiff’s affidavit that he reasonably relied on that handbook statement was sufficient to create an issue of material fact, the court concluded.

Some beneficent employers extend FMLA-equivalent leave to employees who are not otherwise eligible for it. It is one thing to do so intentionally, quite another to do so inadvertently through the omission of an eligibility requirement in the FMLA policy in the employee handbook.