Employers may be required to grant leave to employees who are not covered by the Family and Medical Leave Act (“FMLA”), if their FMLA policies are not carefully written.  According to a recent federal court decision, this situation may occur if an employee handbook (1) leads the employee to believe he or she was eligible for leave and (2) creates an enforceable contract between the employer and the employee.

In Peters v. Gilead Sciences, Inc., an employee was initially granted leave under the employer’s FMLA policy even though the employer had fewer than 50 employees within a 75-mile radius of that the employee’s worksite.  The employer replaced the employee before his leave expired, noting the employee’s ineligibility for FMLA leave.  The employee sued, claiming he was entitled to leave under the FMLA and because he relied on the employer’s handbook provision which stated that “all employees” who met the 12-month, 1,250-hour prerequisites – without mention of the FMLA’s exception for worksites with less than 50 employees – were eligible for leave. 
   
The court found that the employer’s handbook provision may constitute a promise that was reasonably relied on by the employee and therefore, would preclude the employer from denying the leave or replacing the employee.  The court noted that employers may “offer FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA.”  The decision also raises the possibility that employers may be precluded from asserting defenses under the FMLA in similar situations. 

Employers should review their employee handbooks to ensure that FMLA leave provisions are clearly worded and plainly set forth all eligibility requirements for leave.  Taft’s labor and employment attorneys are available to assist you in reviewing employee handbooks and your FMLA compliance programs.