An employee sends an email to her manager requesting FMLA leave to care for her father “while he deals with issues surrounding his terminally ill brother.” The supervisor writes back, “Approved,” and the employee takes leave. Neither the FMLA nor the employer’s FMLA policy allows leave to care for a terminally ill uncle. Based on the employee’s absence, the employer rescinds a temporary promotion the employee had received. The employee sues the employer for FMLA retaliation. Can the employer argue in defense that the employee was ineligible for FMLA leave? That was the issue presented in a recent case decided by the Eleventh Circuit Court of Appeals, Dawkins v. Fulton County Government, Case No. 12-11951 (11th Cir., September 30, 2013).
Equitable estoppel is a doctrine that prevents a party in litigation from asserting a claim or fact that is inconsistent with a position that the party has previously taken, if the other party has reasonably relied on that position. In Dawkins, the employee argued that in light of her supervisor’s approval of her FMLA leave request, her employer should have been prevented from disputing her FMLA eligibility. That argument raised two questions: Does the Eleventh Circuit recognize equitable estoppel to extend FMLA coverage? And assuming it does, did the employee’s equitable estoppel argument have merit?
Unfortunately, the court decided the second question only. The court held that the employee did not reasonably rely on her supervisor’s approval of her FMLA request. The court noted that the employee had previously taken FMLA leave and knew that completing FMLA paperwork was required for the employer to determine FMLA eligibility. So, any reliance on the supervisor’s email approval was not reasonable. Additionally, before receiving the supervisor’s approval, the employee asked for her FMLA paperwork to be sent to her uncle’s address in Florida. This showed that the employee was intent on taking leave regardless of her FMLA eligibility and that she did not actually rely on her supervisor’s approval.
The court declined to decide whether equitable estoppel can ever be used to extend FMLA coverage. The court stated: “The relief Dawkins requests would require this court to create a new federal common law equitable estoppel applicable to the FMLA. The times when we should create new federal common law are few and restricted.” But in a dissenting opinion, Judge Wilson noted that every other circuit to have considered the issue has decided that equitable estoppel can apply in FMLA cases. So it remains to be seen how the Eleventh Circuit will resolve this issue.
For employers, the Dawkins case should serve as a reminder about the importance of carefully considering FMLA leave requests. While employers should not deny legitimate FMLA requests made by eligible employees, employers should be hesitant to grant FMLA leave requests made by ineligible employees. Under the right set of facts, an ineligible employee might be able to persuade a court that the employer’s actions prevent the employer from disputing his FMLA eligibility – even if his leave was to care for his sick uncle.