If an employee tells her supervisor that she needs Family and Medical Leave Act leave for bereavement reasons, and the supervisor approves it, an employer may be bound to honor the commitment, even though the FMLA does not cover bereavement leave. At least, this was the recent ruling by the Eighth Circuit in Murphy v. FedEx National LTL, Inc., Nos., 09-3473/3518.

Murphy highlights the importance of involving Human Resources at the first inkling that a requested leave may be an FMLA leave, continuously training supervisory staff on the contours of FMLA, and documenting employee FMLA requests and employer responses to them.

In Murphy, an Eighth Circuit panel of judges determined that a female truck driver discharged for taking what she believed was authorized FMLA leave to grieve following her husband's death was entitled to a new trial, but she had to prove that she reasonably believed that her employer had represented that it granted her FMLA leave. The decision potentially expands the FMLA's definition of "serious health condition" to include bereavement leave based on an estoppel theory.

The employee had sought and received FMLA leave to care for her husband, also a truck driver for the same employer, who had been hospitalized. About one week later, the husband died unexpectedly. The employee called her supervisor and, noticeably distraught, asked him about employee funeral and burial expense benefits. She also took three days of bereavement leave. The employee claimed that thereafter she had told her supervisor she needed 30 more days to "take care of things" and that her supervisor had responded, "Okay, cool, not a problem, I'll let HR know." The employee believed this statement constituted an approval of her continued FMLA leave, and she did not subsequently speak to Human Resources. When the supervisor advised Human Resources that the employee had requested 30 additional days of leave, Human Resources denied the request. Thereafter, the employee was terminated.

The employee then filed suit alleging that her employer had interfered with her rights under the FMLA. Construing the FMLA interference claim as one asserted under an equitable estoppel theory, the Court remanded the case for a new trial under a revised jury instruction: in order to return a verdict for the employee, the jury is required to find that she reasonably believed that her employer had represented that it granted her FMLA leave, as opposed to some other kind of leave. The Court held that "an employer who makes an affirmative representation that an employee reasonably and detrimentally believed was a grant of FMLA leave can be estopped from later arguing that the employee was not in fact entitled to that leave because she did not suffer from a serious health condition."

At the same time, the Court reaffirmed a commonly held view that before an employee can claim FMLA protection, "the employee must put the statute in play—she must notify her employer that she may need FMLA leave. To permit otherwise would enable an employee to blind-side her employer by taking a generic leave request and retroactively transforming it into an FMLA claim." Even an estoppel-based FMLA claim, therefore, cannot proceed on "vague representations" that fail to distinguish an ordinary sick day from a serious health condition.