FMLA undesignation

An employee is out on leave as a result of a work related injury.  The WC leave is handled by the Corporate office.  The facility HR Manager designated the leave as FMLA before confirming the employee's eligibility for FMLA.  The employee did not meet the 1250 hours requirement.  Can we undesignate the leave?  Or does the time WC paid the employee count towards the employees 1250 hours to make them eligible?


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  • According to BLR's website:

    Some courts have held that employees are entitled to FMLA protections based on representations made by the employer, even if the employer’s representation is based on a mistaken designation. See
    Murphy v. FedEx National LTL, Inc., 618 F.3d 893 (8th Cir. 2010); Daniel Dobrowski v. Jay Dee Contractors, Inc. (6th Cir. 2009).
    Based on the legal principle of “equitable estoppel,” these courts in these cases require that even if there is no specific legal requirement of FMLA eligibility, the employer’s promise of FMLA eligibility must be kept based on principles of fairness. In effect, the courts have held the employer to its promises of providing FMLA-type protection, even if the employee is not eligible under the law.
    In the Dobrowski case, the 6th Circuit recognized that Dobrowski wasn’t eligible for FMLA leave because the company didn’t employ the necessary number of employees at his work site. Thus, the question before the court was whether he should be treated as entitled to the FMLA’s protections based on Jay Dee’s previous acknowledgment of his eligibility.
    The court looked to cases from other circuits that had relied on the U.S. Supreme Court’s decision in
    Heckler v. Community Health Services of Crawford County, Inc. In that case, the Supreme Court clarified that to prevail on a claim of equitable estoppel, there must be:
    • Definite misrepresentation of a significant fact;
    • Reasonable reliance on the misrepresentation; and
    • Resulting detriment to the party reasonably relying on the misrepresentation.
    More specifically, the Supreme Court found that “the party claiming the estoppel must have relied on its adversary’s conduct in such a manner as to change his position for the worse, and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” The 6th Circuit clarified that Dobrowski “need not show that his employer either was aware of the true facts or intended for the statement to be relied upon.”
    The Court noted that Jay Dee’s actions qualified as a misrepresentation of Dobrowski’s eligibility. However, it further found that Dobrowski had failed to show that he detrimentally relied on the misrepresentation. Although he had complied with the requirements of the FMLA, there was no evidence that he changed his behavior based on the company’s misinformation.
    Bottom line. It is imperative for employers to carefully consider FMLA eligibility rules. First, whether the employer is subject to the FMLA, and second, whether the employee is eligible under the threshold requirements (worksite with 50 employees, 12 months of service and 1,250 work hours in the previous 12 months) and whether the employee’s need for leave falls under one of the FMLA’s specific eligible circumstances.
    If the employer mistakenly designates an employee’s leave as FMLA eligible, it may be held to that designation.
  • Agree with HR36 about the courts moving towards giving the employee the benefit of a FMLA eligibilty employer mistake. Also your state's workers comp laws can also come into play with employee protections in termination/light duty/return to work time frames. 
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