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FMLA Provisions in Employee Handbooks

by The Human Equation, Inc. on 10/9/2008
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Due to the slowing economy, our company has been forced to downsize its workforce in the past two years, and, as a result, we are no longer large enough for our existing employees to qualify for coverage by the Family and Medical Leave Act (FMLA). Should we delete any references to the FMLA from our employee handbook?

Yes. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing eligible employees to take reasonable leave for medical, health, or family reasons. The FMLA normally provides eligible employees with a total of 12 workweeks of leave during any 12-month period. However, the FMLA contains an exception to the statutory definition of "eligible employee" that applies to those employees at worksites where an employer employs fewer than 50 people-but only "if the total number of employees employed by that employer within 75 miles of that worksite is less than 50." This rule, known as the "50/75" provision, is an exception to the FMLA's general eligibility provision, which premises eligibility on an employee's having worked for the employer for at least 12 months and having worked a minimum of 1,250 hours during the previous 12-month period. Accordingly, employees who fall within the 50/75 exception are not entitled to FMLA leave.

However, the Seventh Circuit Court of Appeals recently held that an employee handbook may entitle an employee to FMLA leave even though, as a result of the 50/75 exception, the employee is clearly not eligible for it. The court relied on a provision in the company's employee handbook which stated that "all employees" who were employed with the company for at least 12 months and who had worked a minimum of 1,250 hours during the prior 12-month period were entitled to FMLA leave. The handbook did not contain any reference to the 50/75 exception. Under general contractual and reliance principles, the court held that the employee handbook may be considered a binding promise by the company to give FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA. In other words, because of a poorly written employee handbook, the court held that the employee may be entitled to FMLA leave benefits even though he is not eligible for such benefits under the FMLA. If a company does not employ the number of workers required for FMLA eligibility, then the best way to avoid inadvertent extension of FMLA benefits is to remove any reference to the FMLA from the company handbook- after consulting legal counsel.

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