Employees are not eligible for leave under the federal Family and Medical Leave Act (FMLA) unless, among other things, they have worked for a covered employer for at least 12 months. It is also a matter of common sense that only employees who are actually eligible for FMLA leave can assert a claim for interference with those rights. Or is it? What if human resources (HR) tells an employee to take leave before he or she is eligible, not to worry about his or her job, and that it would approve the FMLA leave? The U.S. District Court for the Eastern District of Wisconsin recently confirmed that HR assurances like these can give rise to a viable FMLA interference claim, even before an employee is eligible for leave. Reif v. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven, No. 18-C-884 (November 6, 2018).

Brillion West Haven, which is an assisted living facility, hired Angel Reif to work in an administrative role on January 25, 2017. In early January 2018, after experiencing significant pain in her hip and knee, Reif’s doctor advised her to undergo surgery to repair a previous injury to her Achilles tendon. When an HR coordinator informed her that she would not be eligible for FMLA leave until January 25, 2018, Reif scheduled her surgery for January 31, 2018, and expressed her intent to take FMLA leave at that time.

On the same day that Reif notified her employer of her intent to take FMLA leave, the HR coordinator, after speaking with an administrator, told Reif that she needed to schedule her surgery as soon as she could, that she would work with her so that her FMLA leave would be approved, and that her job would be available when she returned from leave. In addition, the coordinator notified Reif that an executive administrator had told her to send Reif home “because she was a liability,” even though her doctor had not placed any restrictions on her, and because the employer “did not want her to injure herself further and file a worker’s compensation claim for her pre-existing injury.” The coordinator also told Reif that she was not allowed to work until she recovered from the surgery.

In light of the assurances from the HR coordinator and the sudden loss of income, Reif submitted a request for FMLA leave on January 10, 2018, and underwent surgery on January 17, 2018, eight days before her one-year anniversary. On January 19, 2018, the HR coordinator sent Reif a letter indicating that she was not eligible for FMLA leave. On January 24, 2018, the HR coordinator informed Reif that her employer would not hold her position for her. On February 9, 2018, the coordinator informed Reif that her position had been filled.

Reif filed a lawsuit alleging that her employer interfered with her right to take medical leave under the federal FMLA and discriminated against her by terminating her employment because she attempted to take FMLA leave. Reif also asserted state law claims for promissory estoppel and misrepresentation.

The employer moved to dismiss the FMLA claims, alleging that Reif was not eligible for FMLA leave. In denying that request, the district judge noted that the employer “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.” But the judge noted that, according to the allegations, that is not what happened, and if Reif’s allegations turned out to be true, “[i]t 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.”

While this case is still in the early stages, and the employer may ultimately prevail, it presents a cautionary tale to employers about the impact that HR comments can have on FMLA rights and responsibilities.