The Seventh Circuit Court of Appeals has issued an opinion that should serve as a reminder to employers to be careful how they explain employee eligibility under the Family Medical Leave Act (FMLA) in their handbooks and other materials, and in sending leave eligibility information to individual employees.

The opinion, Peters v. Gilead Sciences, Inc., involved an employer with multiple facilities that did not make clear that employees at a particular facility were ineligible for leave under the FMLA's so-called "50/75" rule. Under the "50/75" rule, employers do not have to provide FMLA leave to employees who work at sites with fewer than 50 employees, if the total number of employees working within 75 miles of that site is under 50. The exception applies even if the employer has other sites that meet the FMLA's general coverage requirements.

The plaintiff in the Peters case worked at a facility that employed fewer than 50 employees. The employer had other facilities that met the FMLA's coverage requirements, but it employed fewer than 50 employees within 75 miles of the plaintiff's worksite, making the plaintiff ineligible for FMLA leave under the "50/75" exception. When the plaintiff went on leave after surgery, however, the employer sent him a standard form letter explaining the company's general FMLA policy. The plaintiff also received a handbook that explained the FMLA policy in detail. Both the letter and the handbook stated that the FMLA policy applied to "all employees" and listed no exceptions for employees who worked at sites that fell under the "50/75" exception. When the plaintiff refused to accept a different position upon returning from leave, his employment was terminated and he sued, claiming job protection under the FMLA.

The Seventh Circuit found that even though the employee was ineligible for FMLA leave under the "50/75" rule, the medical leave representations the employer made in the letter and in its handbook may have given the plaintiff a right under state law to the equivalent of FMLA leave. Even if the letter and handbook did not give the plaintiff any contractual right to FMLA leave, the court held, he may still be eligible to recover damages if he reasonably relied on the employer's representations regarding available leave.

The court's holding reinforces the need for employers who have some employees covered under the FMLA and others who are not to use caution when drafting handbooks, letters and other materials explaining FMLA eligibility. Employers should identify which facilities or employees are not covered under the FMLA, and clearly and consistently explain any separate leave guidelines applicable to employees not covered under the FMLA.