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To be eligible for FMLA leave, an employee must have worked for his employer for at least 12 months and clocked at least 1,250 hours during the 12 months leading up to FMLA leave.

Now an Illinois court has ruled that employees who request FMLA leave before they’ve met those thresholds are protected from retaliation. An employer can’t, for example, fire such an employee because he says he will soon be taking FMLA leave and perhaps undergo expensive medical treatment.

Bottom line:
If the employee would otherwise be eligible for FMLA leave and gives early notice, you can’t terminate him without a separate, valid business reason such as poor performance.

Recent case:
Christopher Reynolds had worked for his employer nine days short of one year when he told HR that he would need FMLA leave in a few months. His son had just been born prematurely and was expected to remain in neonatal care for several months. Reynolds intended to take 12 weeks off under the FMLA once his son was released from the hospital.

Reynolds also asked HR about adding his son to the company health insurance plan. He was fired the next day, and he sued.

The company tried to argue that it was free to discharge him because he was not yet eligible for FMLA leave and therefore not protected from retaliation.

The court disagreed. The FMLA says employees have to give their employers notice if they know they will need FMLA leave, and to punish someone for doing just that was wrong. (Reynolds v. Inter-Industry Conference on Auto Collision Repair, No. 08-CV-2115, ND IL, 2009)

Final note: This employer better watch out. A jury may conclude it fired Reynolds to save on health care costs for a premature baby. That’s illegal under ERISA—the Employee Retirement Income Security Act.

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