March 2015
Expanding Eligibility:
Is Your FMLA Policy Ripe for Misinterpretation?
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INTRODUCTION
Can the wording in your handbook make employees otherwise ineligible for FMLA leave eligible? The
Sixth Circuit (which has appellate jurisdiction over district courts in Kentucky, Michigan, Ohio and
Tennessee) has answered this question in the affirmative, and employers everywhere must take heed and
review their FMLA policies.
TILLEY V. KALAMAZOO COUNTY ROAD COMMISSION
Tilley v. Kalamazoo County Road Commissi on, 777 F.3d 303 (6th Cir. 2015), arose because Terry Tilley
failed to complete several job assignments in a timely manner. On the morning that Tilley was supposed
to complete his final assignment, Tilley claimed that he thought he was having a heart attack and had a
coworker drive him to the hospital. As a result of his hospital stay, Tilley never submitte d the final
assignment.
Following his absence, the Road Commission sent Tilley FMLA paperwo rk including a cover letter and a
"Notice of Eligibility and Rights & Responsibilities," which both stated that Tilley was eligible for FMLA
leave. The Road Commission then terminated Tilley for failing to complete his assignments in a timely
manner. Tilley filed suit cla iming that, among other things, the Road Commission had inte rfered with his
right to take FMLA leave. Tilley argued that had he known he was not FMLA e ligible, he would have
finished his assignment rather than go to the hospital for his suspected heart attack.
Generally, protection under the Family Medical Leave Act ("FMLA") extends only to employees who are
"eligible" as defined by the statute. To be eligible, an employee must have work ed for the employer for at
least 12 months, worked at least 1,250 hours for the emplo yer during the 12 month period immediately
preceding leave, and worke d at a location where the em ployer had at least 50 employees within 75 miles .
The FMLA clarifies that for the 50/75-Employee Threshold, the number of employees is determined at the
time the employee gives notice of the need for leave. 29 C.F.R. § 825.110(e). The Sixth Circuit readily
concluded that Tilley was ineligible for FMLA leave, because the Road Commission employed less than 50
people within 75 miles of Tille y's workplace when he requested FMLA leave. In fact, the court
unequivocally stated that "as a matter of law, Tilley was not an 'eligible employee.'"
Nevertheless, the Sixth Circuit went on to find that Tilley had an FMLA claim anyway. While Tilley was
unquestionably ineligible fo r FMLA leave, the Sixth Circuit appl ied the doctrine of "equitable estoppel" to
find merit in Tilley's othe rwise groundless claim. The court noted that in certain circumstances, equitable
estoppel works to prevent employers from raising non-eligibi lity as a defense where the employer has
made statements about an employee's FMLA eligibility.
