Skip to Content
Michel | King Michel | King
Free Confidential Case Evaluation 205-265-1880

Can My Employer Revoke Approved FMLA Leave?


A unique issue affecting FMLA litigation has been addressed by a few federal courts, but a consensus has not yet been reached. The question is whether an employer can change its mind about an employee’s eligibility for FMLA leave after that leave has already been granted? Some courts have reasoned that the doctrine of equitable estoppel prevents an employer from revoking FMLA leave that has already been approved, but other courts refuse to go that far, including the Eleventh Circuit.

What Does the FMLA Require an Employer to Provide?

The Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., entitles eligible employees who work for covered employers to at least twelve (12) weeks of unpaid leave for certain serious medical conditions, or to provide care for certain relatives with those same medical conditions. The FMLA also prohibits employers from interfering with an employee’s exercise of his or her rights under the statute and from retaliating against employees for exercising those rights.

Some Employers Regret Approving FMLA Leave

From the employer’s standpoint, it can be a challenge to determine an employee’s entitlement to FMLA leave under the statute which makes some employers hesitant to grant leave initially. Another concern for most employers is whether their decisions are in full compliance with the statutory requirements. As a result, employers often find themselves questioning an employee’s eligibility for FMLA leave after the fact, including after the employee has taken some or all of their approved leave.

What Rights Do Employees Have if their Approved FMLA Leave is Revoked?

When this situation arises, employees are left wondering what their rights are when an employer reneges on the FMLA leave they already approved. What if an employer later determines that the employee was not actually eligible for the leave they approved? Based on the language of the FMLA statutes, it may be argued that only eligible employees can bring a cause of action for interference or retaliation under the FMLA. That would mean that if your employer determines you were not initially eligible, you may not have any recourse under the statute. But not all courts interpret this issue that way.

The Doctrine of Equitable Estoppel

The legal doctrine of equitable estoppel prevents one party from taking unfair advantage of another in situations where one person persuades another to act in a certain way and, in reliance on that persuasion, the other person is injured. In the FMLA leave situation, when an employee who relies on his employer’s approval of leave, his employer is estopped from acting against the employee if it is later determined he was not entitled to leave.

Some Courts Apply the Doctrine of Equitable Estoppel

A few courts have addressed this issue by applying the doctrine of equitable estoppel to prevent employers from retroactively denying FMLA leave on the basis that the employee was not eligible. For example, in one case, an employee was allowed to take FMLA leave and then the
employer determined that she had not worked the number of hours required to qualify for leave under the statute. The court determined that the employer failed to comply with its statutory duty to accurately inform its employees about their eligibility. This failure has been seen by some courts as a material misrepresentation upon which their employee detrimentally relied.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

Share To: