The Family and Medical Leave Act only provides job protected leave rights to eligible employees. Among other eligibility criteria, an employee claiming entitlement to FMLA leave must work at a location with a minimum of 50 employees within a 75-mile radius. What happens when an employer mistakenly informs an employee ineligible for FMLA leave that he in fact qualifies for leave? According to a new case from the Sixth Circuit Court of Appeals, the employer may be equitably estopped from later denying FMLA leave rights.

In Tilley v. Kalamazoo Cnty. Road Comm’n, the plaintiff claimed that he was experiencing heart attack symptoms. The county’s human resource representative informed him that he was eligible for FMLA leave despite the fact that he worked at a location too small for FMLA leave entitlement. After the county terminated the plaintiff for absenteeism, he sued claiming violation of his FMLA rights, and the county sought dismissal based on eligibility grounds.

The Sixth Circuit disagreed, reversing a grant of summary judgment for the county. In its decision, the court recognized that the plaintiff was ineligible for FMLA leave. However, it concluded that the county may be equitably estopped from denying leave rights because of its representations to the plaintiff, and his reliance on these representations. The Sixth Circuit remanded the matter for trial on the estoppel issue.

This decision contradicts those of other federal appeals courts that take a stricter position with regard to FMLA eligibility. These courts concluded that if the employee is ineligible for leave under the statute, federal courts have no ability to hear claims based on FMLA rights regardless of the employer’s conduct. While the employee may be able to claim breach of contract, misrepresentation or other state law actions, he or she cannot pursue claims under the FMLA itself.

This contradiction could prompt the U.S. Supreme Court to resolve this issue. Some employers avoid these problems by voluntarily extending FMLA coverage to all employees regardless of their work location. Others carefully distinguish between eligible and ineligible locations based on size. Based on this decision, employers that fail to make these distinctions could lose their ability to reverse mistaken advice to ineligible employees about authorization for FMLA leave.