The FMLA Blog

No Good Deed Goes Unpunished: Employer's Can Be Sued For Violating More Generous FMLA Leave Policies

Employers can, knowingly or unknowingly, adopt family and medical leave (FML) policies that are more generous than the minimum required by the FMLA.  Violation of those more generous policies may subject the employer to civil suit for monetary damages for breach of contract or promissory estoppel based on the employee's detrimental reliance on the employer's policy. Such a claim is not based on the FMLA. Nor will the employer be able to successfully defend these type of actions by arguing that the FMLA does not apply.          

The issue was recently addressed by the Seventh Circuit in in Peters v. Gilead Sciences, Inc.,No. 06-4290, 2008 U.S. App. LEXIS 14894 (7th Cir. July 14, 2008).  In that case, Gilead policy permitted employees to take FML leave if they met two requirements: (1) at least 12 months of employment with the company; and (2) at least 1250 work hours in the 12 month period preceding leave commencement.  Those requirements are the same as the eligibility requirements of the FMLA. What Gilead's policy did not include, however, was the FMLA requirement that Peters be employed at a worksite that employs at least 50 employees within 75 miles- the so-called 50/75 rule.  By not including the 50/75 rule, Gilead's FML policy was more generous than the FMLA. Peters was not entitled to FMLA leave because he did not work at a worksite where there were at least 50 Gilead employees within 75 miles.

Peters applied for and was approved FML leave for a work-related shoulder injury. Gilead provided him with a letter confirming his right to take up to 12 weeks of FMLA leave. The letter repeated the 12 months and 1250 hours eligibility requirements that was also set forth in the employee handbook.  Consistent with the policy, the letter did not address the 50/75 rule.  Like the handbook, the letter also guaranteed his right to reinstatement for such leave if he returned to work by a specified date.  Unfortunately for the employer, it miscalculated the when 12 weeks of FMLA expired.  The miscalculation shorted Peters a month of FML leave.  Gilead replaced Peters before the true expiration of his FML leave.  Peters was medically cleared to return to work before his 12 weeks of FMLA leave expired. 

Peters sued alleging that his termination violated the FMLA.  He also added a state law promissory estoppel claim.  Promissory estoppel is a cause of action independent of the FMLA that permits the enforcement of a promise that otherwise lacks the elements of a contract.  Gilead defended the suit by arguing that Peters was not eligible for FMLA leave because he did not meet the 50/75 requirement.  The trial court agreed.  After equating his promissory estoppel claim with equitable estoppel, the trial court also found that Peters failed to establish that he should be deemed eligible based on the misrepresentations of Gilead. 

On appeal, the Seventh Circuit reversed the decision of the trial court.  The Seventh Circuit found that, even if Peters was not eligible for FMLA leave, he may have an FMLA-like claim for breach of contract or promissory estoppel based on his detrimental reliance on Gilead's handbook policy and the letters he received approving his FMLleave.  The trial court erred when it equated equitable estoppel, a defensive doctrine, with promissory estoppel, a cause of action.  Both are based on detrimental reliance.  The Court remanded the matter back to the trial court to address those claims.

Comment: Employer FML policies frequently provide greater rights than the minimum required by the FMLA.  In addition to dropping the 50/75 eligibility requirement, employers may allow employees to take FML leave for siblings or other family relatives beyond those identified in the FMLA (spouse, daughter, son).  Employer policies may also granted more than the minimum 12 weeks of FMLA leave.  Violation of those more generous policies may/may not create a cause of action for violation of the FMLA.  They may, however, create a contract or promissory estoppel cause of action for violation of the employer's FMLA-like leave policies.  The fact that you did not intend to create more generous FML rights may not relieve you from suit. 

To avoid inadvertently creating greater FML rights (which can be the basis of civil suit) than the minimum required by the FMLA, employers need to exercise great care when drafting and executing their family leave policies. Consistent with the mandates of state law, handbooks and manuals should include prominently displayed disclaimers that the handbook does not create any express or implied contract rights. Employers should also consider having their FML policies independently audited to identify areas where the policy exceeds or fails to meet FMLA requirements. With that information, the employers can make informed decisions on whether it wishes to continue to provide more generous FML policies or not.  Bosland Consulting Group can help you with such audits.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.                   

12 Consecutive Months of Employment Not Required for FMLA Eligibility

FMLA leave is available to an employee who has been employed (1) for at least 12 months by the employer with respect to whom leave is requested; (2) for at least 1,250 hours by the employer with respect to whom leave is requested; and (3) the employee must be employed at a work site where there are at least 50 employees of the employer within 75 miles.

In Thomas v. Mercy Mem. Health Center, Inc., No. CIV-07-022-SPS, 2007 U.S. Dist. LEXIS 64184 (E.D. Ok. Aug. 29, 2007), Thomas worked for the Hospital from January 2002 through May 2003, and from April 2004, until she was fired in January 2005.  All told, Thomas worked intermittently for the Hospital for more than 12 months.  Thomas argued that she was fired for being absent for leave that should have been covered by the FMLA. 

The Hospital argued that Thomas was not eligible for FMLA leave because she had not worked for the hospital for 12 consecutive months prior to the date her leave would have commenced.  The Hospital argued that its position was supported by a common sense reading of the statute.  It argued that, because the statute is unambiguous, the DOL regulation (29 CFR 825.110(b)), which provides that the 12-month period need not be consecutive, is invalid.  The Hospital also relied on the opinion of the district court in Rucker v. Lee Holding Co., 419 F. Supp. 2d 1 (D. Ma), rev'd, 471 F.3d 6 (1st Cir. 2006).  In that case, the district court found that an employee could not combine his most recent employment with his previous years of service, which ended five years before, for purposes of the 12-month requirement.

The Court found that the FMLA does not require 12 months of consecutive or continuous employment immediately preceding leave commencement in order to satisfy the 12-month FMLA eligibility requirement.  In so holding, the Court agreed with the decision of the Circuit Court in Rucker v. Lee Holding  Co., 471 F.3d 6 (1st Cir. 2006).  If Congress had wanted the 12-month eligibility requirement to be 12 consecutive or continuous months immediately preceding leave commencement, the Court found that it could have easily done so.  The Court denied the employer's motion to dismiss the employee's FMLA claim.

Comment:  For purposes of the 12-month eligibility requirement, the FMLA does not require employment for 12 consecutive months immediately preceding the commencement of FMLA leave.  The employer in this case attempted to apply the same standard for the 12-month eligibility requirement as is applied for the 1,250-work hours requirement.       

    

Court Rejects Employee Claim He Would Have Met FMLA Eligibility Requirements But For Wrongful Discharge

In Kinchion v. Cessna Aircraft, Co., No. 07-1134-JTM, 2007 U.S. Dist. LEXIS 59683 (D. Kan. Aug. 14, 20007), the employee requested FMLA leave on February 7, 2007, to attend a medical appointment incident to his diagnosis with diabetes.  The employer denied him leave because he had only worked 532 hours in the 12-month period prior to the medical appointment. 

Kinchion had previously suffered a workplace injury to his hand.  In February 2006, it was determined that Kinchion's job duties exceded his medical limitations.  Cessna placed Kinchion on an unpaid leave of absence.  Kinchion collected unemployment.  He was subsequently awarded workers' compensation disability benefits by a U.S. Department of Labor administrative law judge for htis period. 

Kinchion sued alleging violations of the ADA and FMLA.  Kinchion asserted that he was wrongfully discharged in violation of the ADA for filing a workers' compensation claim.  Kinchion also alleged that his wrongful discharge interfered with his FMLA rights by preventing him from accumulating the necessary 1250 required services hours.  Had he not been terminated in violation of the ADA, Kinchion argued, he would have worked the necessary 1250 hours to be eligible for FMLA leave to attend the medical apointment for his diabetes.

The Court initlaly found that the time Kinchion spent on an unpaid leave of absence did not count towards the 1250 hours eligibility requirement.  The Court further found that it "would be speculative for the court to credit Kinchion with the hours of service lost during his leave of absence without pay, even if he was ultimately successful on his wrongful discharge claim."  Because he was not eligible at the time his request for FMLA leave was denied in 2007, the court concluded that Kinchion failed to establish an FMLA intereference claim.

Comment:  Courts have been decidedly unreceptive to employee claims that they would have met the FMLA eligibilty requirements but for some other wrongful conduct, be it a vioaltion of law or the terms of a collective bargaining agreement, by the employer.    

Eligibilty Determined at Leave Commencement, Not During Absence

The FMLA requires an employer to return an employee to their same or an equivalent job at the conclusion of FMLA leave.  To take FMLA leave an employee must meet certain eligibility requirements.  Whether an absence is covered by the FMLA and, therefore, entitles an employee to job restoration, will depend, in part, on whether the employee meets the eligibility requirements for FMLA leave.  Critical to this determination is the point in time when eligibility is assessed.      

In Adly v. Supervalue, Inc., No. 06-CV-5108 (PJS/RLE), 2007 U.S. Dist. LEXIS 57011 (D. Minn. Aug. 3, 2007), Adly went on short term disability leave on January 24, 2006. At the time he had worked for his employer for 10 months.  He would meet the 12-month eligibility requirement on March 28.  Adly did not seek to return to work until April 10.  Supervalue argued that Adly was not eligible for FMLA leave because he did not meet the 12-month eligibility requirement at the commencement of his leave on January 24, 2006, as required by 29 CFR 825.110(d).  As such, Supervalue did not violate the FMLA when it refused to return him to work because his absence was not covered by the FMLA and, therefore, he had no FMLA right to return to work.   

Adly argued that his eligibility should be assessed as of March 28, the date he became eligible while absent from work.  Adly argued that on March 28, the period of leave that commenced on January 24 was transformed by operation of law from non-FMLA leave leave to FMLA leave.  Adly based his argument on 29 CFR 825.110(b), which provides that periods of leave such as sick time and vacation time count towards the 12-month eligibility threshold under the FMLA.  Adly argued that he became eligible for FMLA leave on March 28.  The court agreed that, had Adly returned to work on March 28 and asked for leave on March 29, he would have been eligible.  The court, however, rejected Adly's argument that his absence beginning January 24 was transformed because he reached 12 months of employment during his absence.

The court explained:

Adly's leave, however, was uninterrupted.  It was a single period of leave, taken for a single purpose -- a purpose that in no way changed during the course of the leave.  Under 825.110(d), courts must characterize a period of leave, for FMLA purposes, at the front end. An unbroken leave taken for a single purpose does not change its character in the midst of the leave just because the employee becomes eligible under the FMLA.  Accordingly, the Court finds that Adly never took FMLA leave.  He thus did not have a right of reinstatement under the FMLA. 

Comment:  To be eligible for FMLA leave, an employee must meet 3 requirements: (1) worked for the same employer for at least 12 months; (2) worked at least 1250 hours; and (3) is employed at a worksite where there is at least 50 employees within 75 miles.

The 12-month and 1250 works eligibility requirements as of leave commencement.  Leave commencement is the first absence from work due to the same underlying covered condition each leave year.  Where leave is taken in a single, uninterrupted block of time, eligibility is determined as of the first missed day of work. The fact that the employee meets the eligibility requirements during the unbroken absence does not transform the leave, in whole or in part, from non-FMLA to FMLA leave. 

Similarly, where leave is taken on an intermittent basis (i.e, more than one absence for the same underlying condition during a 12-month leave year), eligibility is determined as of the first absence in the series.

   

FMLA Eligibility Does Not Last Forever

FMLA eligibility does not last forever once attained thereby prohibiting an employer from ever recalculating eligibility. 

In Davis v. Michigan Bell Tel. Co., No. 06-10513, 2007 U.S. Dist. LEXIS 18940 (E.D.Mich. March 19, 2007), the employee first met the FMLA eligibility requirements for depression on September 24, 2004.  She required and was granted additional intermittent absences in October, November, and December 2004.  In January 2005, the employer recalculated Davis' eligibility and denied her FMLA leave because she had not worked 1250 hours in the 12 months preceding her first request for leave after the new year.  The employer used the calendar leave method for calculating the 12-month FMLA leave year.  Her first request for leave after the new year was for depression.

David argued that Michigan Bell violated the FMLA when it recalculated her eligibility in January 2005.  According to Davis, once she became eligible for a serious health condition that requires intermittent leave, her eligibility cannot be redetermined with respect to that condition.  The Court disagreed.

The Court found that, generally, intermittent absences stemming from the same serious medical condition all relate back to the original eligibility and an employer is precluded from recalculating eligibility for each new period of absence.  However, there is a limitation. The Court continued:

An employer may recalculate an employee's FMLA eligibility at the commencement of the first absence in a new 12-month period as designated by the employer. 

As support, the Court cited the decision in Barron v. Runyon, 11 F. Supp. 2d 676, 681 (E.D.Va. 1998) and the Department of Labor (DOL) Opinion Letter FMLA-112, 2000 WL 33157366 (Sept. 11, 2000).  The DOL Opinion Letter provides:

[I]t is our position that the 1,250-hour eligibility test is applied once, on the commencement of a series of intermittent absences, if all involve the same FMLA-qualifying serious health condition during the same 12-month FMLA leave year. The employee in such a case remains entitled to FMLA leave for that FMLA reason throughout the 12-month period, even if the 1,250-hour calculation is not met at some later point in the 12-month period during the series of related intermittent absences.

Comment:  FMLA eligibility is determined as of the first absence in a series of related intermittent absences for the same covered condition, but only for the 12-month period that the employer has elected as the FMLA leave year.  Once that 12-month period expires an employer has the right to determine anew if the employee meets the FMLA eligibility requirements, even if the leave is for the same serious health condition the employee met the previous year.  The upshot of the decision and the DOL Opinion letter is that eligibility does not attach to each serious health condition and last forever once met. 

Court Finds "Deemed Eligible" Penalty Provision Invalid

The court in Massengill v. Anderson County Board of Eduction, No. 3:06-CV-61, 2007 U.S. Dist. LEXIS 16318 (E.D.Tenn. Mar. 7, 2007), joined a long list of other courts finding that the penalty provided in 29 CFR 825.110(d) for an employer's failure to notify an employee within two business days that the employee did not meet the eligibility requirements for FMLA leave was invalid. The penalty imposed by 825.110(d) is that the employee will be "deemed eligible" even if they do not in fact meet the FMLA eligibility requirements.

In Massengill, the employee was discharged after missing work to tend for her sick daughter for ten days.  The employee had not worked the requisite 1250 hours in the 12 month period preceding the commencement of leave.  The employer, however, did not inform Massengill that she was not eligible for FMLA leave.  The employee argued that her employer should be estopped from asserting that she was not eligible for FMLA leave because the employer failed to timely notify the employee that she was not eligible for FMLA coverage, citing 825.110(d).  The Court disagreed.  The Court agreed with a long line of cases that have found that 29 CFR 825.110(d) "seeks to impermissibly extend the scope of FMLA coverage beyond that clearly established by Congress, rendering the regulation invalid." 

The Court also rejected Massengill's alternative argument that her employer should be equitably estopped from denying FMLA coverage for failure to meet the eligibility requirements. The Court found that equitable estoppel may apply where an employer erroneously informs the employee that they qualified for FMLA leave when the employee actually did not qualify.  Here, the employer failed to notify the employee at all whether they were eligible for FMLA leave.  As a consequence, the Court found that the line of cases applying equitable estoppel did not apply because the employee had not been initially misinformed that they qualified for FMLA leave.

Comment: The decision provides a good list of cases that have found the "deemed eligible" penalty provision of 29 CFR 825.110(d) invalid.  It also reminds us that some of the current DOL regulations have been invalidated by many courts.   

   

First Circuit Rules Break In Service Does Not Prevent Counting of Earlier Employment Towards 12-Month Eligiblilty Requirement

The Court Circuit in Rucker v. Lee Holding Co., No. 06-1633, 2006 U.S. App. LEXIS 31072 (st Cir.. Dec.. 18, 2006) recently held that the complete separation of an employee from his or her employment for a period of years does not prevent the employee from counting earlier periods of employment towards satisfying the 12-month FMLA eligibility requirement.  The decision reversed the earlier decision of the district court, which found that the employee's previous five years of employment with Lee did not count towards the 12-month requirement because of the intervening five year break in service between the earlier and current periods of employment. 

Ken Rucker worked as a car salesman for Lee Auto Malls in Maine for five years.  Rucker then left Lee, and five years later rejoined Lee as a full-time employee.  Seven months after rejoining Lee, Rucker took medical lave.  Approximately two months later, Rucker's employment was terminated.  Rucker filed suit claiming that the termination was in violation of the FMLA. The district court granted Lee's motion to dismiss, holding that Rucker could not combine his previous period of employment with his more recent period of employment and thus could not satisfy the FMLA's 12-month employment eligibility requirement. 

The Fourth Circuit found that the FMLA itself was ambiguous as to whether previous periods of employment count toward the 12-month eligibility requirement.  The Court noted that the statutory language "has been employed ... for at least 12 months by the [relevant] employer" could "be read either to refer to only the most recent period of employment by the relevant employer or to all periods of employment by that employer.  Asking how long an employee "has been employed" at a particular company, the Court observed, "is an ambiguous question if he or she has had more than one period of employment."  The legislative history, the Court added, failed to demonstrate clear congressional intent on the issue. 

The Court went on to address 29 CFR 825.110(b) of the DOL regulations.  That regulation states:

The 12 months an employee must have been employed by the employer need not be consecutive months.  If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid lave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.  For purposes of determining whether intermittent/occasional/casual employment qualifies as "at least 12 months," 52 weeks is deemed to be equal to 12 months.

Rucker focused his argument on a broad reading of the first sentence as meaning that all period of employment count toward the 12-month requirement.  Lee instead argued that the first sentence was limited by the second and third sentences, so that non-consecutive months count only when the employee maintains a continuing connection to the employer, as through the continuing provision of benefits.  The Court concluded that neither interpretation of the regulation was reasonable.

The Court found that the DOL's regulatory language was ambiguous.  When interpreting agency regulations courts give substantial deference to the agency's own interpretation of its regulations, so long as that interpretation is consistent with the regulation and reflects the agency's fair and considered judgment on the matter in question.  The Court noted that the DOL expressed the view in the preamble accompanying publication of the final FMLA regulations and in an amicus brief that the first sentence of the regulation, allowing for non-consecutive months, is not limited by the subsequent sentences.  The Court found the DOL's interpretation of its regulation reasonable. 

Comment:  The decision establishes that all prior periods of employment by an employee count towards the employee's meeting the FMLA's 12-months of employment eligibility requirement.  Employers should review their record destruction policies to ensure that they retain sufficient employment information so that they can at least determine the begin and end dates of all employees indefinitely.  An employer that has destroyed records evidencing prior employment will, at minimum, have a difficult time of establishing that the employee does nor does not meet the 12-month eligibility requirement. 

The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico. 

1250 Work-Hours Eligibilty Requirement Strictly Enforced

Plaintiff Antoinette Pirant sued the Postal Service alleging that she was terminated in violation of Title I of the FMLA for missing work due to a covered chronic serious health condition.  The record established that Pirant had worked 1248.8 hours in the 12 month period preceding the unscheduled absence that gave rise to her termination. 

The court rejected Pirant's argument that the Postal Service failed to count two hours that she lost when she was wrongfully suspended by her supervisor and directed to clock out early one day.  The court found the record void of evidence that Pirant's suspension was wrongful. Critically, the court noted that Pirant's argument "is based entirely on her own belief, which however honestly held is insufficient to warrant crediting her with the two hours she would have likely worked had she not been suspended."

Pirant argued that she should have been credited for the the several off-the-clock minutes she spent each day before and after work changing into and out of her work cloths, which included a work shirt, apron, gloves and shoes.  The court disagreed.  The court found that, pursuant to the Portal-to-Portal Act, the Postal Service was not required to compensate employees for:

activities which are preliminary to or postliminary to [an employee's] principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Ordinarily, changing and showering before and after work need not be compensated, unless it is an "integral and indispensable part of the principal activity of the employment."  If changing clothes before and after work touches on vital considerations of health, safety, or hygiene, an employer may be required to compensate an employee for that time, and the time would count as "hours worked" for purposes of the 1250-hours FMLA eligibility requirement.  For example, employees who work with toxic chemicals and were compelled to change and shower in facilities the employer was required to provide would satisfy that test.

Here, Plaintiff's job required her to handle the mail.  The court found no evidence that handling mail involved contact with hazardous substances, nor that it required utilization of any type of protective or safety gear.  At most, Pirant was required to use ordinary gloves and an apron.  "Donning and doffing these items would have taken mere seconds and would have required little to no physical or mental exertion."  As a result, the court concluded that Pirant was not entitled to compensation for these activities, and the Postal Service was not required to include time spent performing them in calculating her FMLA eligibility hours.

Finally, Pirant argued that the 1.2 hours shortfall should be disregarded as de minimis.  In rejecting the argument, the Court observed that that other courts have strictly applied all of the FMLA's numerical eligibility requirements.  The Court concluded that Pirant did not meet the eligibility requirements for FMLA leave due to her 1.2 hours shortfall in meeting the 1250 hours-of-service eligibility requirement.  The Court awarded summary judgment to the Postal Service dismissing the case.

Comment: The eligibility requirement that an employee has worked 1250 hours in the 12 months immediately preceding the commencement of leave is strictly enforced.  The case illustrates the type of arguments employees can try to make where the employer claims that the employee has not worked the requisite 1250 hours. 

An argument that might have been raised in Pirant (but apparently was not) arises where the leave at issue is intermittent or on a so-called reduced leave schedule.  That is, where an employee takes FMLA leave on more than one occasion during the 12-month FMLA leave year for the same underlying covered condition, such as a serious health condition.  In that situation, the determination of whether the employee met the 1250-work-hour requirement is made once on the occasion of the first intermittent absence.  If the employee meets the 1250-work hour requirement at that time, the employee has satisfied the eligibility requirement for all remaining related absences for the remainder of the 12-month FMLA leave year. 

Surface Miles is Proper Measure for Determining Whether There is at Least 50 Employees Within 75 Miles of the Employee's Worksite for FMLA Leave Eligibility

The Tenth Circuit in Hackworth v. Progressive Casualty Insurance Co., No. 05-6198, 2006 U.S. App. LEXIS 28179 (10th Cir. Nov. 14, 2006) concluded that surface miles was the proper measure for determining whether an employee met the eligibility requirement that s/he work at a site with at least 50 employees within 75 miles.  In so doing, the court rejected the argument that the 75 miles should be measured "as the crow flies," i.e., in linear miles and not by surface miles.  The decision found that Section 825.111(b) of the DOL FMLA regulations (which uses surface miles) was valid.

Hackwork worked at Progressive's Norman, Oklahoma worksite.  Progressive also had employees at a worksite in Oklahoma City.  Progressive admitted that the Oklahoma City site was 31.47 surface miles from the Norman site.  At all relevant times, the Norman and Oklahoma worksites employed 47 employees.  Progressive also employed 3 employees in Lawton.  The Lawton worksite was 75.6 surface miles and 67 linear miles from the Normal worksite.  Whether Hackworth was eligible for FMLA leave depended on whether the Lawton was included in the calculation. 

Hackworth argued that linear miles was the appropriate measure for determining how many employees were employed within 75 miles of the employees worksite.  In so doing, she challenged the validity of Section 825.111(b) of the DOL FMLA implementing regulations, which directs that surface miles be used for this calculation.  Hackworth relied on references in the House and Senate Reports accompanying the FMLA that an employer employ at least 50 people "within a 75 mile radius."  She argued that the term radius suggests that Congress intended that linear rather than surface miles be used. The Tenth Circuit disagreed.

In determining the validity of the use of surface miles by the DOL in Section 825.111(b), the Court applied the standard first articulated by the Supreme Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 81 L. Ed. 2d 694 (1984).  The Chevron analysis is a two-step process.  First, the court looks to whether Congress directly spoke to the precise question at issue by examining the statutory text, history, and purpose.  If congressional intent is clear, the query ends.  If not, courts proceed to the second step of the Chevron analysis and look to whether the agency's answer is based on a permissible construction of the statute.  Courts uphold an agency's construction of a statute it administers so long as it is not arbitrary, capricious, or manifestly contrary to the statute itself.

The Tenth Circuit initially found that Congress did not expressly indicate in 29 USC 2611(2)(B)(ii) how one should measure the geographic proximity of two distant worksite.  It found the term "within 75 miles" ambiguous on the point.  The court next determined that Congress did not clearly intend that the geographic proximity of two worksites was to be measured in linear miles.  The court found that, given the purpose of the 50/75 provision, Congress just as likely intended that a surface measurement be used.  The 50/75 provision was specifically designed to accommodate employer concerns about the difficulties an employer may have in reassigning workers to geographically separate facilities because employers would relocate workers from nearby facilities to cover for the period of FMLA leave.  Given that purpose, the court concluded that the use of surface miles was a better proxy for the feasibility of transferring employees between worksite because the overwhelming majority of workers use surface transportation to get to work.  It referenced an example where an employer had worksites on the north and south rims of the Grand Canyon to illustrate that linear miles may not be the best practical measurement to address the ease of relocating an employee from one worksite to another.

The Court found that the DOL's use of surface miles was a reasonable construction of the statute.  It noted that surface miles was a plausible reading of the statutory language "within 75 miles."  The use of surface miles "furthers the 50/75 provisions purpose in that a surface measurement is a reasonable proxy for judging an employer's ability to relocate an employee from one worksite to another in order for cover for an employee on FMLA leave."  Finally, the court noted that this interpretation did not favor employers over employees, and that the Fifth Circuit has also upheld the validity of Section 825.111(b).

The court went on to address, and reject, some clever arguments by Hackworth that eligibility should not be dependent on whether a road zig zags or is straight, or whether a road is under construction and an alternate route must be taken.  The court noted that an employee's eligibility could very well depend on such circumstances, but that did not make 825.111(b) arbitrary and capricious.  The court opined:

Rather, we see no reason why such considerations should not be factored into the eligibility calculus given the balance the FMLA strikes between the needs of an employee and employer.  Because the 50/75 provision was intended to protect employers who do not have a sufficient source of substitute employees nearby to cover for an absent employee, it is only logical that conditions which negatively affect the viability of moving an employee from one worksite to another may well come into play.  This s true even if conditions such as the straightness of an interstate or the presence of rad construction may be occasionally determinative of an employee's eligibility status.

Comment:  And you though FMLA eligibility was not fun!  In close cases, employers may want to run several searches on the Driving Directions websites to check their mileage calculations.  Note that employers must be careful where construction has rendered employees outside of the 75 mile surface mile area.  An employer that grants leave to an employee who does not meet all three FMLA eligibility requirements CANNOT deduct that leave from the employee's 12 workweek FMLA leave account.  An employer may be more generous and lower the eligibility requirements for family medical leave.  However, such leave is not statutory FMLA leave.  Only Congress can set the eligibility standards for FMLA leave.  An employer that lowers those standards has effectively created a new form of leave pursuant to company policy, at least until the employee satisfies all three statutory FMLA leave requirements.  It is just as illegal to deduct FMLA leave from an employee's entitlement when it is not warranted as it is to deny FMLA leave to an employee when it is warranted.  Be careful!

Employee Must Request FMLA Leave While Employed

In Penson v. Autozone, Inc., No. 1:06CV140, 2006 U.S. Dist. LEXIS 78820 (N.D.Ohio Oct. 30, 2006), the court awarded summary judgment to the employer dismissing the employee's FMLA claim because the evidence demonstrated that Autozone's decision to terminate the plaintiff occurred before he requested leave.  Therefore, he was not an eligible employee under the FMLA at the time he requested leave, and was not entitled to the benefits and protections of the Act.

Comment: This situation frequently arises in FMLA retaliation claims.  The employee is in trouble and asks for FMLA leave while disciplinary action is in process but has not been issued.  The employer terminates the employee shortly thereafter.  The employee sues claiming that the termination was in retaliation for the request for FMLA leave.  The employee points to the close temporal proximity of the request for leave and the termination as evidence of a casual connection.  Courts have generally found that employers did not violate the FMLA where it can be established that the decision to terminate the employee (for reasons not protected by the FMLA) preceded the employee's FMLA leave request.  While temporal proximity of protected activity (a request for FMLA leave) to an adverse action may be evidence of impermissible retaliation, most courts do not consider such evidence to be conclusive on the issue.  Rather, courts take all facts into account to determine if the FMLA has been violated.  Where the decision to terminate precedes the FMLA leave request, courts generally find that the termination decision was not caused by the request and, therefore, was not impermissible retaliation for exercising FMLA rights.  The FMLA, you will remember, does not protect employees from discipline they would have otherwise received had they not exercised any FMLA rights.