The U.S. District Court in Wisconsin recently held in Reif v. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven, that misleading statements by an employer regarding the Family and Medical Leave Act (“FMLA”) can give rise to an FMLA interference claim, even before an employee is eligible for leave.

In January 2018, the Plaintiff notified the Company’s Human Resources department that she scheduled a required surgery one week after she became eligible for FMLA so as to be entitled to FMLA protection. However, an HR Coordinator told Plaintiff that she needed to schedule surgery as soon as possible (before she was FMLA eligible) and that “she would work with her so that her FMLA would be approved.”

Based on these representations, Plaintiff scheduled an earlier surgery and submitted an FMLA request. Her FMLA request was denied because she was not yet eligible and later was terminated. Plaintiff then filed suit alleging, among other claims, FMLA interference The Defendant moved to dismiss asserting Plaintiff was not eligible for FMLA leave. The Court denied Defendant’s motion stating “it would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

Employers should train management, including human resources team members, to ensure consistent policy application, communication and to avoid false or mistaken representations that can give rise to liability.