No Tag-Backs! Employee Is Entitled to FMLA Coverage, Even Though Not Eligible

The playground game of tag has been played since at least the Cretaceous Period, with efforts by paleontologists to verify earlier origins of the game inconclusive to date. As all sophisticated tag players know, the unwritten rules of the game permit no tag-backs. Once you've been tagged, you can't quickly undo having become "it" by retagging the little hobgoblin who just tagged you. This is a rule of basic fairness, also designed to ensure clarity among the players as to who has become "it."

A recent decision in the Sixth Circuit Court of Appeals applied the no tag-backs rule to employers, with respect to FMLA claims. In Tilley v. Kalamazoo County Road Commission, the employer tagged the employee with FMLA rights by notifying him that he was covered under FMLA. (In this version of the game it's good to be "it.") When the employer later realized that it lacked 50 employees within a 75-mile radius and therefore did not have to cover the employee, it tried a