The FMLA, Expanded

An interference claim can arise when an employer fails to notify an employee about her rights or misrepresents that information. Department of Justice
(DOJ) regulations detail an employer's affirmative obligation to provide notice of FMLA rights, 29 C.F.R. ' 825.300(c)(1), and failure to comply with these notice requirements constitutes interference under the FMLA. Id. ' 825.300(e). Employers must also select one of the four methods of calculating the 12-month period for providing leave, listed under 29 C.F.R. ' 825.200(b), and inform employees of any change in the method of calculation, id.' 825.200(d)(1)) or the subsequent adoption of a method, if none was originally selected. Id. ' 825.200(e)). Failure to do so gives the employee the benefit of the most generous version. Id. ' 825.200(e). Most courts addressing the issue have held that employers must inform their employees of the method they use for calculating leave, though no explicit regulation requires such action. See, e.g., Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1128-29 (9th Cir. 2001); Spencer v. Marygrove Coll., No.07 Civ. 11135. 2008 WL 4056319, at *4 (E.D. Mich. Aug. 26, 2008); Thom v. Am. Standard, Inc., 562 F. Supp. 2d 949, 953-54 (N.D. Ohio 2008); Austin v. Fuel Sys, LLC, 379 F. Supp. 2d 884, 896 (W.D. Mich. 2004).

A few courts have held that no such notice is required, however. Phillips v. Leroy-Somer N. Am., No. 01 Civ. 1046, 2003 WL 1790941, at *7 (W.D. Tenn. 2003), opinion modified on other grounds sub. nom., Wilkerson v. Autozone, Inc., No. 031 Civ. 124, 2004 WL 3670964 (W.D. Tenn. 2004), aff'd on other grounds, 152 Fed. Appx. 444 (6th Cir. 2005); Kelso v. Corning Cable Sys. Int'l Corp., 224 F.Supp.2d 1052 (W.D.N.C. 2002).

The FMLA, however, requires employers only to provide eligible employees with 12 weeks of leave in a 12-month period. 29 U.S.C. ' 2612(a)(1). An employee who is not capable of performing an essential function of the position when her leave entitlement expires is not granted job protection under the FMLA thereafter. 29 C.F.R. ' 825.216(c). As such, interference claims do not protect an employee who required a longer period of leave than the statute provides in order to fully recover; an employee must prove that he or she was actually prejudiced by an employer's violation. See Ragsdale v. Wolverine World Wide, 535 U.S. 81, 90 (2002) (holding that the FMLA requires individual proof of harm due to a lack of notice).

Therefore, an employee can maintain an FMLA claim for interference where she took extended leave if she was capable of returning to work within the statutorily proscribed 12 weeks but was prevented from doing so by her employer's actions or inactions. See, e.g., Wallace v. Microsoft Corp., 563 F. Supp. 2d 1197, 1204-05 (D. Kan. 2008) rev'd in part, 596 F.3d 703 (10th Cir. 2010) (employee had a valid FMLA claim despite taking 24 weeks of leave because the employer gave no notice of leave limitations); Austin v. Fuel Sys., LLC, 379 F. Supp. 2d 884, 899 (W.D. Mich. 2004) (employee was entitled to job restoration after 16.5 weeks of leave, because she did not know defendant's method of calculating FMLA). Plaintiffs must specifically allege that they were capable of returning to work at the end of the 12-week FMLA leave period. Hofferica v. St. Mary Med. Ctr., 826 F. Supp. 2d 813 (E.D. Pa. 2011) (dismissing interference claim because plaintiff “provided no allegations in her complaint as to her physical capacity to return to work prior to the expiration of her FMLA leave,” and court was unwilling to draw such inferences because they amounted to “impermissible speculation,” instead holding that she failed to adequately plead prejudice). Where the employee may not have been capable of returning to work, prejudice may nonetheless be established where an employer's misrepresentations induced the employee to schedule elective surgery that kept him out of work. See Ridgeway v. Royal Bank of Scotland Grp, No. 3:11 Civ. 976, 2012 WL 1033532 (D. Conn. Mar. 27, 2012).

Equitable Estoppel

In addition to interference, a plaintiff may utilize the doctrine of equitable estoppel to prohibit an employer from challenging the employee's leave as not statutorily protected, when it previously gave assurances to the contrary. “In order to succeed on a claim of equitable estoppel, [plaintiff] had to prove that she detrimentally relied on representations made by her supervisors and that these representations caused her not to return to work.” Baker v. Hunter Douglas, 270 Fed. Appx. 159, 164 (3d Cir. 2008).

Equitable estoppel is most often applied to FMLA claims with regard to an employee's eligibility to take leave. When an employer promises that an employee is eligible to take FMLA leave or fails to contest the employee's eligibility at the time he takes leave, it is generally estopped from raising a subsequent defense of ineligibility. See, e.g., Minard v. ITC Deltacom Comm'ns, Inc., 447 F.3d 352, 359 (5th Cir. 2006); Duty v. Norton-Alcoa
Proppants, 293 F.3d 481, 493-94 (8th Cir. 2002); Karavish v. Ceridian Corp., No. 09 Civ. 935, 2011 WL 3924182, at **7-8 (D. Conn. Sept. 7, 2011); Reaux v. Infohealth Mgmt. Corp., No. 08 Civ. 5068, 2009 WL 635468, **3-4 (N.D. Ill. Mar. 10, 2009).

Estoppel will also apply to leave entitlement when the employer promises the employee a specific amount of time for her leave. See, e.g., Duty v. Norton'Alcoa Proppants, 293 F.3d 481, 493'94 (8th Cir. 2002) (the employer told the employee that his entire 34 weeks of leave qualified as FMLA leave and was therefore estopped from asserting otherwise as an affirmative defense); Kanios v. UST, Inc., No. 03 Civ. 369, 2005 WL 3579161, at **10-11 (D. Conn. Dec. 30, 2005) (employer's misrepresentation precluded it from claiming that plaintiff's FMLA leave was exhausted).

The Supreme Court has noted that, in order to apply equitable estoppel, the party's reliance must be reasonable. Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984) (a party's reliance “must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading”). Affirmative statements from an employer, specifying an amount of leave available, will generally invoke reasonable reliance. Murphy v. FedEx Nat. LTL, Inc., 618 F.3d 893, 899-901 (8th Cir. 2010) (plaintiff's reliance on employer's representation that she could take an extra 30 days of FMLA leave was reasonable). On the other hand, “vague or nebulous assurances of job security are not sufficient.” Slentz v. City of Republic, Mo., 448 F.3d 1008, 1011 (8th Cir. 2006) (holding that a “letter to [the plaintiff] did not explicitly guarantee him a specific amount of leave or leave until a specific date but instead assured him 12 weeks of FMLA leave,” so equitable estoppel did not apply).

Tort Claims

Affirmative statements by an employer about the employee's leave entitlement can also give rise to tort claims in certain jurisdictions. In these cases, an employee need not demonstrate her ability to return to work within the statutorily proscribed 12 weeks, merely that she relied upon the employer's misrepresentations about the length of leave available, to her detriment. Further, while the FMLA does not provide for emotional distress damages or other non-monetary damages, see 29 U.S.C. ' 2617 (a)(1); Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1007 (6th Cir. 2005), tort claims can provide punitive and compensatory damages. Practitioners should note that tort claims based solely on the employer's violations of the FMLA generally fail, under the theory that they circumvent the exclusive remedies provided for an FMLA violation. Courts have concluded in these cases that it would be “anomalous” to allow a plaintiff to pursue damages that the FMLA does not provide, which would “bypass the limitations Congress placed on remedies for FMLA violations by permitting a common law tort claim to proceed premised solely on an FMLA violation.” Alvarez v. Hi-Temp Inc., No. 03 Civ. 2610, 2004 WL 603489, at *5 (N.D. Ill. Mar. 24, 2004) (citations omitted); see also Chastain v. Indiana Bell Tel. Co., No. 09 Civ. 01182, 2010 WL 5349810, at *8 (S.D. Ind. Dec. 20, 2010) (promissory estoppel claim was preempted by the FMLA “[b]ecause [the plaintiff] frame[d] his state-law claim as a violation of FMLA rights”); Vargo-Adams v. U. S. Postal Serv., 992 F. Supp. 939, 940-41 (N.D. Ohio 1998) (dismissing state-law wrongful discharge claim on the basis of FMLA preemption).

Yet tort claims based on employer's representations about leave, and not on the FMLA violation itself, can survive. For example, in Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008), the Seventh Circuit allowed a state law claim of promissory estoppel to enforce the employer's promise regarding medical leave when the employer arguably did not employ the requisite number of employees to be covered by the FMLA. Similarly, in Lonergan v. Cargo Tech, Inc., No. 08 Civ. 7458, 2009 WL 3152562 (N.D. Ill. Sept. 28, 2009), the court rejected the plaintiff's FMLA claims because she was not a covered employee, but permitted her to proceed with her promissory estoppel claim because of the employer's representations about its company leave policy. And in Cox v. True North Energy, LLC, the court held that the plaintiff properly alleged a promissory estoppel claim, as the plaintiff relied on the employer's representation that her job would be secure while she underwent cancer treatment. 524 F. Supp. 2d 927, 946-48 (N.D. Ohio 2007); see also Ridgeway, 2012 WL 1033532, at **17-19 (negligent misrepresentation and promissory estoppel claims survived a motion to dismiss because the plaintiff alleged reliance on employer's assurances of leave entitlement); Sturza v. Loadmaster Eng'g, Inc., No. 07 Civ. 2500, 2008 WL 1967102, at *6 (S.D. Tex. May 1, 2008) (holding that plaintiff's fraud, negligent misrepresentation, and promissory estoppel claims were not premised on an FMLA violation and were therefore properly pled); Gauthier v. Yardney Technical Prods., Inc., No. 05 Civ. 1362, 2007 WL 2688854, at *7 (D. Conn. Sept. 13, 2007) (denying summary judgment on plaintiff's promissory estoppel claim based on employer's promises about leave entitlement); Farina v. Compuware Corp., 256 F.Supp.2d 1033, 1061-62 (D. Ariz. 2003) (finding no preemption of a promissory estoppel claim because “[p]laintiff's promissory estoppel claim is not that her rights under the FMLA were violated, but that Compuware's promises to her (couched in terms of FMLA requirements) resulted in detrimental reliance”); Bala v. Jacobson Stores, Inc., No. 99 Civ. 10482, 2001 WL 1543503, at **10-11 (E.D. Mich. Nov. 27, 2001) (denying summary judgment on a promissory estoppel
claim that alleged that the employer's promise of continued employment upon extended absence “induced the plaintiff to give up his rights to which he was otherwise entitled under the FMLA”).

Some states do not permit tort claims based on employers' promises about continued employment, however, given that employees are presumptively at will. For example, “New York law ' does not recognize promissory estoppel in the employment context,” Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 394, 422 (E.D.N.Y. 2010), modified (July 2, 2010), and so courts have rejected promissory estoppel claims about the ability to return to work following medical leave on this theory. See, e.g., LeBoeuf v. N.Y. Univ. Med. Ctr., No. 98 Civ. 0973, 2000 WL 1863762 (S.D.N.Y. Dec. 20, 2000).

Other Statutes

The FMLA does not supersede any provision of any state or local law that provides greater family or medical leave rights. 29 U.S.C. ' 2651(b). Employees and their attorneys should therefore consult state and local laws, as eleven states and the District of Columbia have laws that impose additional leave requirements on employers. See Department of Labor, “Federal vs. State Family and Medical Leave Laws,” www.dol.gov/whd/state/fmla/index.htm. While not all such statutes provide private rights of action, they may offer administrative remedies for violations. See, e.g., Conn. Gen. Stat. Ann. ' 31-51pp.

In addition, the Americans with Disabilities Act (ADA) guarantees reasonable accommodations to employees with serious medical conditions, 42 U.S.C. ' 12112(b)(5)(A), and extended medical leave has been held to be such a reasonable accommodation, if it is not an undue hardship on the employer. See Rascon v. U.S. West Comms., Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742 (2001) (finding that employer could have reasonably accommodated plaintiff's request for extended medical leave where plaintiff expected that he needed four months of leave to pursue treatment and where he had a good prognosis). Medical leave may not be held to be a reasonable accommodation, however, where the requested leave is indefinite. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (holding that “reasonable accommodation does not require the [employer] to wait indefinitely for [the plaintiff's] medical conditions to be corrected”).

Further statutory protections for employees have been proposed, such as the Pregnant Workers Fairness Act, H.R. 5647, 112th Cong. (2012), which would guarantee reasonable accommodations to pregnant employees, including leave beyond the FMLA's 12 weeks. Ultimately, legislative solutions may expand employees' leave rights, but advocates should keep in mind that the current statutory scheme, judicial doctrine, and related laws provide a variety of protections for employees in need of extended medical leave.

Sandra E. Pullman is an associate at Outten & Golden LLP, where she represents employees in litigation and negotiation in all areas of employment law.

The Family Medical Leave Act's (FMLA) guarantee of 12 weeks of leave due to a serious health condition has long been criticized as inadequate to meet employees' needs. Yet employees who remain out on leave longer than 12 weeks pursuant to their employers' representations can typically reclaim their jobs and even seek damages beyond those envisioned by the statute. Where employers have not met their obligations under the FMLA, plaintiffs should look to the text of the statute, judicial estoppel, and common law or other related statutes to grant them job protection following an extended leave.

Interference

To begin, the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” FMLA, 29 U.S.C. ' 2615(a)(1). In order to make a case for interference with benefits under 29 U.S.C. ' 2615(a)(1), a plaintiff must establish that: 1) she is an eligible employee; 2) she was entitled to take leave under the FMLA; 3) she gave notice to her employer of her intention to take leave; and 4) the employer denied her the benefit to which she was entitled under the FMLA. Sabatino v. Flik Int'l Corp. , 286 F. Supp. 2d 327, 335-36 (S.D.N.Y. 2003). Such a claim is distinct from a discrimination or retaliation claim, which arises when an employer takes an adverse action based on the employee's attempt to exercise her rights to take leave. Stallings v. Hussmann Corp. , 447 F.3d 1041, 1051 (8th Cir. 2006) (“The difference between the two claims is that the interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation claim requires proof of retaliatory intent.”) (Citing Kauffman v. Fed. Exp. Corp. , 426 F.3d 880, 884 (7th Cir. 2005)).

An interference claim can arise when an employer fails to notify an employee about her rights or misrepresents that information. Department of Justice
(DOJ) regulations detail an employer's affirmative obligation to provide notice of FMLA rights, 29 C.F.R. ' 825.300(c)(1), and failure to comply with these notice requirements constitutes interference under the FMLA. Id. ' 825.300(e). Employers must also select one of the four methods of calculating the 12-month period for providing leave, listed under 29 C.F.R. ' 825.200(b), and inform employees of any change in the method of calculation, id.' 825.200(d)(1)) or the subsequent adoption of a method, if none was originally selected. Id. ' 825.200(e)). Failure to do so gives the employee the benefit of the most generous version. Id. ' 825.200(e). Most courts addressing the issue have held that employers must inform their employees of the method they use for calculating leave, though no explicit regulation requires such action. See, e.g., Bachelder v. Am. W. Airlines, Inc. , 259 F.3d 1112, 1128-29 (9th Cir. 2001); Spencer v. Marygrove Coll., No.07 Civ. 11135. 2008 WL 4056319, at *4 (E.D. Mich. Aug. 26, 2008); Thom v. Am. Standard, Inc. , 562 F. Supp. 2d 949, 953-54 (N.D. Ohio 2008); Austin v. Fuel Sys, LLC , 379 F. Supp. 2d 884, 896 (W.D. Mich. 2004).

A few courts have held that no such notice is required, however. Phillips v. Leroy-Somer N. Am., No. 01 Civ. 1046, 2003 WL 1790941, at *7 (W.D. Tenn. 2003), opinion modified on other grounds sub. nom., Wilkerson v. Autozone, Inc. , No. 031 Civ. 124, 2004 WL 3670964 (W.D. Tenn. 2004), aff'd on other grounds, 152 Fed. Appx. 444 (6th Cir. 2005); Kelso v. Corning Cable Sys. Int'l Corp. , 224 F.Supp.2d 1052 (W.D.N.C. 2002).

The FMLA, however, requires employers only to provide eligible employees with 12 weeks of leave in a 12-month period. 29 U.S.C. ' 2612(a)(1). An employee who is not capable of performing an essential function of the position when her leave entitlement expires is not granted job protection under the FMLA thereafter. 29 C.F.R. ' 825.216(c). As such, interference claims do not protect an employee who required a longer period of leave than the statute provides in order to fully recover; an employee must prove that he or she was actually prejudiced by an employer's violation. See Ragsdale v. Wolverine World Wide , 535 U.S. 81, 90 (2002) (holding that the FMLA requires individual proof of harm due to a lack of notice).

Therefore, an employee can maintain an FMLA claim for interference where she took extended leave if she was capable of returning to work within the statutorily proscribed 12 weeks but was prevented from doing so by her employer's actions or inactions. See, e.g., Wallace v. Microsoft Corp. , 563 F. Supp. 2d 1197, 1204-05 (D. Kan. 2008) rev'd in part, 596 F.3d 703 (10th Cir. 2010) (employee had a valid FMLA claim despite taking 24 weeks of leave because the employer gave no notice of leave limitations); Austin v. Fuel Sys., LLC , 379 F. Supp. 2d 884, 899 (W.D. Mich. 2004) (employee was entitled to job restoration after 16.5 weeks of leave, because she did not know defendant's method of calculating FMLA). Plaintiffs must specifically allege that they were capable of returning to work at the end of the 12-week FMLA leave period. Hofferica v. St. Mary Med. Ctr. , 826 F. Supp. 2d 813 (E.D. Pa. 2011) (dismissing interference claim because plaintiff “provided no allegations in her complaint as to her physical capacity to return to work prior to the expiration of her FMLA leave,” and court was unwilling to draw such inferences because they amounted to “impermissible speculation,” instead holding that she failed to adequately plead prejudice). Where the employee may not have been capable of returning to work, prejudice may nonetheless be established where an employer's misrepresentations induced the employee to schedule elective surgery that kept him out of work. See Ridgeway v. Royal Bank of Scotland Grp, No. 3:11 Civ. 976, 2012 WL 1033532 (D. Conn. Mar. 27, 2012).

Equitable Estoppel

In addition to interference, a plaintiff may utilize the doctrine of equitable estoppel to prohibit an employer from challenging the employee's leave as not statutorily protected, when it previously gave assurances to the contrary. “In order to succeed on a claim of equitable estoppel, [plaintiff] had to prove that she detrimentally relied on representations made by her supervisors and that these representations caused her not to return to work.” Baker v. Hunter Douglas , 270 Fed. Appx. 159, 164 (3d Cir. 2008).

Equitable estoppel is most often applied to FMLA claims with regard to an employee's eligibility to take leave. When an employer promises that an employee is eligible to take FMLA leave or fails to contest the employee's eligibility at the time he takes leave, it is generally estopped from raising a subsequent defense of ineligibility. See, e.g., Minard v. ITC Deltacom Comm'ns, Inc. , 447 F.3d 352, 359 (5th Cir. 2006); Duty v. Norton-Alcoa
Proppants , 293 F.3d 481, 493-94 (8th Cir. 2002); Karavish v. Ceridian Corp., No. 09 Civ. 935, 2011 WL 3924182, at **7-8 (D. Conn. Sept. 7, 2011); Reaux v. Infohealth Mgmt. Corp., No. 08 Civ. 5068, 2009 WL 635468, **3-4 (N.D. Ill. Mar. 10, 2009).

Estoppel will also apply to leave entitlement when the employer promises the employee a specific amount of time for her leave. S ee, e.g., Duty v. Norton'Alcoa Proppants , 293 F.3d 481, 493'94 (8th Cir. 2002) (the employer told the employee that his entire 34 weeks of leave qualified as FMLA leave and was therefore estopped from asserting otherwise as an affirmative defense); Kanios v. UST, Inc., No. 03 Civ. 369, 2005 WL 3579161, at **10-11 (D. Conn. Dec. 30, 2005) (employer's misrepresentation precluded it from claiming that plaintiff's FMLA leave was exhausted).

The Supreme Court has noted that, in order to apply equitable estoppel, the party's reliance must be reasonable. Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc. , 467 U.S. 51, 59 (1984) (a party's reliance “must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading”). Affirmative statements from an employer, specifying an amount of leave available, will generally invoke reasonable reliance. Murphy v. FedEx Nat. LTL, Inc. , 618 F.3d 893, 899-901 (8th Cir. 2010) (plaintiff's reliance on employer's representation that she could take an extra 30 days of FMLA leave was reasonable). On the other hand, “vague or nebulous assurances of job security are not sufficient.” Slentz v. City of Republic, Mo. , 448 F.3d 1008, 1011 (8th Cir. 2006) (holding that a “letter to [the plaintiff] did not explicitly guarantee him a specific amount of leave or leave until a specific date but instead assured him 12 weeks of FMLA leave,” so equitable estoppel did not apply).

Tort Claims

Affirmative statements by an employer about the employee's leave entitlement can also give rise to tort claims in certain jurisdictions. In these cases, an employee need not demonstrate her ability to return to work within the statutorily proscribed 12 weeks, merely that she relied upon the employer's misrepresentations about the length of leave available, to her detriment. Further, while the FMLA does not provide for emotional distress damages or other non-monetary damages, see 29 U.S.C. ' 2617 (a)(1); Brumbalough v. Camelot Care Ctrs., Inc. , 427 F.3d 996, 1007 (6th Cir. 2005), tort claims can provide punitive and compensatory damages. Practitioners should note that tort claims based solely on the employer's violations of the FMLA generally fail, under the theory that they circumvent the exclusive remedies provided for an FMLA violation. Courts have concluded in these cases that it would be “anomalous” to allow a plaintiff to pursue damages that the FMLA does not provide, which would “bypass the limitations Congress placed on remedies for FMLA violations by permitting a common law tort claim to proceed premised solely on an FMLA violation.” Alvarez v. Hi-Temp Inc., No. 03 Civ. 2610, 2004 WL 603489, at *5 (N.D. Ill. Mar. 24, 2004) (citations omitted); see also Chastain v. Indiana Bell Tel. Co., No. 09 Civ. 01182, 2010 WL 5349810, at *8 (S.D. Ind. Dec. 20, 2010) (promissory estoppel claim was preempted by the FMLA “[b]ecause [the plaintiff] frame[d] his state-law claim as a violation of FMLA rights”); Vargo-Adams v. U. S. Postal Serv. , 992 F. Supp. 939, 940-41 (N.D. Ohio 1998) (dismissing state-law wrongful discharge claim on the basis of FMLA preemption).

Yet tort claims based on employer's representations about leave, and not on the FMLA violation itself, can survive. For example, in Peters v. Gilead Sciences, Inc. , 533 F.3d 594 (7th Cir. 2008), the Seventh Circuit allowed a state law claim of promissory estoppel to enforce the employer's promise regarding medical leave when the employer arguably did not employ the requisite number of employees to be covered by the FMLA. Similarly, in Lonergan v. Cargo Tech, Inc., No. 08 Civ. 7458, 2009 WL 3152562 (N.D. Ill. Sept. 28, 2009), the court rejected the plaintiff's FMLA claims because she was not a covered employee, but permitted her to proceed with her promissory estoppel claim because of the employer's representations about its company leave policy. And in Cox v. True North Energy, LLC, the court held that the plaintiff properly alleged a promissory estoppel claim, as the plaintiff relied on the employer's representation that her job would be secure while she underwent cancer treatment. 524 F. Supp. 2d 927, 946-48 (N.D. Ohio 2007); see also Ridgeway, 2012 WL 1033532, at **17-19 (negligent misrepresentation and promissory estoppel claims survived a motion to dismiss because the plaintiff alleged reliance on employer's assurances of leave entitlement); Sturza v. Loadmaster Eng'g, Inc., No. 07 Civ. 2500, 2008 WL 1967102, at *6 (S.D. Tex. May 1, 2008) (holding that plaintiff's fraud, negligent misrepresentation, and promissory estoppel claims were not premised on an FMLA violation and were therefore properly pled); Gauthier v. Yardney Technical Prods., Inc., No. 05 Civ. 1362, 2007 WL 2688854, at *7 (D. Conn. Sept. 13, 2007) (denying summary judgment on plaintiff's promissory estoppel claim based on employer's promises about leave entitlement); Farina v. Compuware Corp. , 256 F.Supp.2d 1033, 1061-62 (D. Ariz. 2003) (finding no preemption of a promissory estoppel claim because “[p]laintiff's promissory estoppel claim is not that her rights under the FMLA were violated, but that Compuware's promises to her (couched in terms of FMLA requirements) resulted in detrimental reliance”); Bala v. Jacobson Stores, Inc., No. 99 Civ. 10482, 2001 WL 1543503, at **10-11 (E.D. Mich. Nov. 27, 2001) (denying summary judgment on a promissory estoppel
claim that alleged that the employer's promise of continued employment upon extended absence “induced the plaintiff to give up his rights to which he was otherwise entitled under the FMLA”).

Some states do not permit tort claims based on employers' promises about continued employment, however, given that employees are presumptively at will. For example, “New York law ' does not recognize promissory estoppel in the employment context,” Emmons v. City Univ. of N.Y. , 715 F. Supp. 2d 394, 422 (E.D.N.Y. 2010), modified (July 2, 2010), and so courts have rejected promissory estoppel claims about the ability to return to work following medical leave on this theory. See, e.g., LeBoeuf v. N.Y. Univ. Med. Ctr., No. 98 Civ. 0973, 2000 WL 1863762 (S.D.N.Y. Dec. 20, 2000).

Other Statutes

The FMLA does not supersede any provision of any state or local law that provides greater family or medical leave rights. 29 U.S.C. ' 2651(b). Employees and their attorneys should therefore consult state and local laws, as eleven states and the District of Columbia have laws that impose additional leave requirements on employers. See Department of Labor, “Federal vs. State Family and Medical Leave Laws,” www.dol.gov/whd/state/fmla/index.htm. While not all such statutes provide private rights of action, they may offer administrative remedies for violations. See, e.g., Conn. Gen. Stat. Ann. ' 31-51pp.

In addition, the Americans with Disabilities Act (ADA) guarantees reasonable accommodations to employees with serious medical conditions, 42 U.S.C. ' 12112(b)(5)(A), and extended medical leave has been held to be such a reasonable accommodation, if it is not an undue hardship on the employer. See Rascon v. U.S. West Comms., Inc. , 143 F.3d 1324, 1333-34 (10th Cir. 1998), overruled on other grounds by New Hampshire v. Maine , 532 U.S. 742 (2001) (finding that employer could have reasonably accommodated plaintiff's request for extended medical leave where plaintiff expected that he needed four months of leave to pursue treatment and where he had a good prognosis). Medical leave may not be held to be a reasonable accommodation, however, where the requested leave is indefinite. Myers v. Hose , 50 F.3d 278, 283 (4th Cir. 1995) (holding that “reasonable accommodation does not require the [employer] to wait indefinitely for [the plaintiff's] medical conditions to be corrected”).

Further statutory protections for employees have been proposed, such as the Pregnant Workers Fairness Act, H.R. 5647, 112th Cong. (2012), which would guarantee reasonable accommodations to pregnant employees, including leave beyond the FMLA's 12 weeks. Ultimately, legislative solutions may expand employees' leave rights, but advocates should keep in mind that the current statutory scheme, judicial doctrine, and related laws provide a variety of protections for employees in need of extended medical leave.

Sandra E. Pullman is an associate at Outten & Golden LLP, where she represents employees in litigation and negotiation in all areas of employment law.