Telling employees that they’re eligible for leave under the Family and Medical Leave Act when they’re not can be a costly mistake for an employer. That’s the message behind a recent Pennsylvania decision. In Medley v. Montgomery County, (E.D. Pa.) No 2:12-cv-01995, a nursing assistant worked fewer than  the 1250 hours required to be eligible for FMLA leave. However,  the employer mistakenly told her she qualified for FMLA leave, had her fill out FMLA forms and provided documents stating she was eligible for “family care” leave after three continuous months of employment. Then, when she began to take intermittent leave to care for her son, who had a host of medical problems, she was written up for her absences.  She was ultimately terminated for one of the absences that she believed was covered by her FMLA leave.

When she sued for FMLA interference and retaliation, the employer argued that her claims should be dismissed, because, as a matter of law, she did not satisfy the basic prerequisite for FMLA leave.  While the court agreed that her claim of interference with FMLA rights failed, because she had no actual FMLA right, her claim for retaliation survived – for that claim she only needed to show that she was treated adversely because she took FMLA leave. Actual entitlement to leave under the FMLA is not an element of the claim, the court said.

Employers should be careful in explaining their leave policies to employees and in calculating eligibility.