What happens if my employer miscalculates my FMLA eligibility in Texas? Dallas employment lawyer explains

FMLA protects a covered employee’s right to up to twelve weeks of protected leave time for specific medical conditions for the employee or an immediate family member. An employee must qualify for FMLA protections to invoke the right to leave under the statute. An employee who does not qualify for FMLA leave must look to other laws or the employer’s voluntary leave policy. To be eligible for FMLA leave:

  1. The employee is covered under FMLA (with sufficient service time and hours).
  2. The employer is a covered employer (with at least 50 employees in a 75 mile radius).
  3. The employee is eligible for the requested leave (have enough protected leave time remaining).

Calculating FMLA Eligibility in Dallas and Fort Worth, Texas

Eligibility for leave depends upon whether the employee has available time within the twelve weeks of protected leave and whether the medical condition falls within the statute. Once a valid request for FMLA is received the employer must determine eligibility and ether approve it or explain why it is rejected. So what happens if the employer incorrectly determines the employee’s eligibility for FMLA leave? The answer depends upon whether the employee actually is eligible for leave.

If the employee is eligible but the employer incorrectly determines the employee is ineligible then the answer is straightforward. Here the employer violated the employee’s FMLA rights by unlawfully denying the employee’s request. The employer’s wrongful denial of FMLA leave is no different if the employer incorrectly determined the employee was ineligible for leave or if the employer knew the employee was eligible but denied the FMLA leave request. Intent to deprive the employee of his or her FMLA rights is not an element of an FMLA interference claim. The employer has a duty to properly determine eligibility.

What happens when Texas employer miscalculates FMLA eligibility for an ineligible employee?

It’s trickier when the employee is ineligible but the employer incorrectly informs the employee that he or she is eligible. Whether a claim exists depends on what happens after the employer informs the employee of the erroneous eligibility. If the employee takes leave and the employer makes no effort to punish the employee then nothing happens. The employee gained the benefit of additional leave time at no harm. On the other hand, if the employee then takes leave and the employer discovers its mistake and punishes the employee then the employee has a claim for FMLA retaliation against the employer.

The employer will assert FMLA’s protections do not apply. Courts routinely agree the employer cannot let the employee take what the employer said is protected leave and then punish the employee for taking the leave. (This is known as equitable estoppel.) To let the employer take back FMLA certification after the employee made arrangements for leave or is on leave defeats the employer’s obligation to calculate eligibility. The employer could approve all certifications up front and then later circle back and fire anybody who was ineligible. Not a great result under the law.

Another wrinkle occurs when the employer certifies an ineligible employee as eligible and then realizes the mistake before the leave. The particular facts will determine whether the employee relied upon the employers first incorrect certification. The more harm suffered undoing plans made for the leave the more likely the employee can enforce the original certification. However, this is particularly dangerous if the employer discharges the employee and the employee cannot prove detrimental reliance.

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