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Court rules on early FMLA protection: Never fire for requesting leave in advance

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in Firing,FMLA Guidelines,Human Resources

The 11th Circuit Court of Appeals has ruled for the first time on an important FMLA question, providing greater protection for employees who are not yet eligible for FMLA leave but who request leave that will start once they become eligible. The court said employees who haven’t yet worked for their employer for one year and 1,250 hours can’t be terminated for requesting later leave.

Recent case: Kathryn Pereda had worked for her employer 11 months when she told her boss she was pregnant and would take FMLA leave once her child was born.

Pereda was fired before she became FMLA-eligible—a move her resulting lawsuit said was punishment for requesting FMLA leave. A trial court dismissed her case, reasoning that she wasn’t eligible for leave when she made the request and therefore had no FMLA rights.

The 11th Circuit Court of Appeals disagreed. It reasoned that, as long as the employee would be eligible on the requested day, she was protected from retaliation for requesting leave early. (Pereda v. Brookdale Senior Living Communities, No. 10-14723, 11th Cir., 2012)

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