A federal district court decision earlier this year serves as a blunt reminder to employers to carefully review their employment policies to ensure they accurately reflect their employees’ entitlement, if any, to leave under the Family and Medical Leave Act (“FMLA”).

In Reaux v. InfoHealth Management Corp., No. 08 C 5068, 2009 U.S. Dist. LEXIS 18140 (N.D. Ill. Mar. 10, 2009), the court rejected an employer’s motion to dismiss where the employer argued that the plaintiff was not covered by the FMLA because the employer had less than fifty employees within seventy-five miles of the plaintiff’s work location (the “50/75 rule”). The court held that the employer was equitably estopped from raising a defense under the 50/75 rule based on an FMLA leave policy contained in the employer’s employee handbook and the employer’s verbal assurances to the plaintiff that she was eligible for leave. The handbook outlined procedures for FMLA leaves of absence, stating that the employer had a policy of providing unpaid leave to “eligible” employees “in compliance with the Family and Medical Leave Act of 1993” and defining “eligible” employees as those merely satisfying the length of service and hours requirements of the FMLA. The plaintiff claimed that she followed the procedures outlined in the employee handbook. Not only did the employee handbook contain such language but the plaintiff’s supervisor also told the plaintiff that she would be entitled to maternity leave under the FMLA if she completed the necessary documentation. During the plaintiff’s leave, which she believed to be approved leave under the FMLA, the plaintiff’s employment was terminated.

While acknowledging the viability of the 50/75 rule, the court in Reaux found this defense inapplicable on the facts presented because the employer misrepresented to the plaintiff verbally and in writing that she was eligible for FMLA leave, the plaintiff relied on this misrepresentation and the plaintiff was terminated during her leave. The court noted that the Seventh Circuit had “previously assumed but not decided” that equitable estoppel could bar an employer’s defense to FMLA eligibility and that courts in other circuits had recognized that equitable estoppel could block such a defense.

Particularly in light of the recent amendments to the FMLA, employers should be vigilant about ensuring that their policies are up-to-date. Moreover, employers should ensure that their policies do not inadvertently confer FMLA rights upon employees who would not otherwise be entitled to statutory protection.