"Approved." Due to an email containing that single word, the Eleventh Circuit Court of Appeals found itself addressing an FMLA issue that is somewhat of a paradox–whether to expand FMLA coverage to absences not covered by the FMLA…when an employer has approved FMLA leave for the uncovered absence. Put in a legal framework, the issue is whether there is a federal common law equitable estoppel cause of action that would prevent an employer from denying an employee’s eligibility for FMLA coverage even when there is no dispute that the reason for leave is not covered by the FMLA. Dawkins v. Fulton County Government (11th Cir. September 30, 2013).
It all began when the plaintiff sent her supervisor an email, requesting time off to assist her father who was dealing with his brother’s grave health condition. Leave for this reason is not covered by the FMLA. In her request, the employee had asked that the FMLA packet be sent to a particular address.
The supervisor promptly emailed a one-word response to the plaintiff’s request: Approved. When the employer rescinded the plaintiff’s temporary assignment because of her absences, she claimed it was in retaliation for taking FMLA leave. The employer argued that since the reason for leave was not covered by the FMLA, the plaintiff was not entitled to the FMLA’s protection.
The Eleventh Circuit held that even if a federal common law claim of equitable estoppel were to exist with regard to the FMLA, the plaintiff would not have such a claim because she did assert that she relied on any misrepresentation or that her reliance was both reasonable and to her detriment. The decision also notes the four circuits that have recognized such a cause of action—the Second, Fifth, Sixth and Eighth—while four other circuits—First, Seventh, Ninth and Tenth Circuits—have considered the issue but have not decided whether such a cause of action exists.