FMLA: Pre-Eligibility Leave Requests May be Protected

Please, no more twists to the Family and Medical Leave Act!

But, in fact, the twists keep coming. Here’s a new one: We all know that new employees aren’t covered by the FMLA until they’ve worked the required 1,250 hours in the past 12 months. But one court recently ruled that pre-eligible employees may be protected in certain cases. So what exactly are they?

Case in Point: Kathryn Pereda worked at an assisted living facility in Florida. After eight months on the job, she informed her boss that she was pregnant and planned to take FMLA leave when the child was born, five months later. By then, Pereda would have been eligible for FMLA leave.

But Pereda didn’t make it five months. The company fired her three months after her FMLA request—and one month shy of the 12-month FMLA threshold. The company cited poor performance. But Pereda said she was a “top employee” before making the request for leave.

Her FMLA request was the real reason for the firing, Pereda said, so she sued, saying the company retaliated and interfered with her right to take FMLA leave.

FMLA Compliance D

The company argued that the lawsuit should be dismissed because Pereda hadn’t yet earned FMLA eligibility at the time of the termination. The lower court agreed—if the law doesn’t cover you, you aren’t protected.

But, the appellate court reversed that ruling, saying that simply by requesting FMLA leave for the future, Pereda was “engaged in a protected activity” under the FMLA and the employer could not take adverse action against her.

To rule otherwise, the court said, would provide a “loophole” whereby pre-eligible employees who give notice of future FMLA leave could be terminated without remedy.

“Such a situation is contrary to the basic concept of the FMLA,” the court wrote. It added that the FMLA notice provision—in which employees must give at least 30 days notice of foreseeable leave—is to protect employers who must manage extended absences and shouldn’t be used against employees.

“Our decision today simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA,” sais the court. (Pereda v. Brookdale Senior Living Cmtys. Inc.11th Cir., 1/10/12)

3 Lessons Learned … Without Going to Court

1. Note the nature of the request. If employees request leave, regardless of the employee’s FMLA-eligibility status, it may trigger FMLA protection.

2. Don’t place employees under a microscope. In this case, it is alleged that once the employee requested FMLA leave she was placed under the “performance microscope” and was constantly written up. That will smell fishy to a judge and jury.

3. Buckle up. This is a new twist and court interpretation to the FMLA. While the court asserted that this decision does not expand the FMLA coverage to a “new class of employees” it does put a new light on how we must view and treat non-eligible employees.