Let other leave fill gap until FMLA eligibility

Employers can’t fire an employee who is about to reach the thres­­hold for FMLA eligibility if the em­­­­­­ployee has other accrued leave available to bridge her to FMLA eligibility.

Recent case: Ena hadn’t quite reached her eligibility date for FMLA leave when she announced she was pregnant and would want to take 12 weeks of unpaid FMLA leave after giving birth. She ordinarily worked 30 hours per week.

Because she experienced an ectopic pregnancy in the past, Ena’s doctors categorized her pregnancy as high risk and immediately told her em­­ployer she couldn’t mop floors. Later, the doctor added “no snow removal” to her restrictions. Then, just before Ena would become eligible for FMLA leave, her doctor restricted her to working no more than 20 hours per week.

The employer fired Ena when she showed up for her next shift. Ena was just 10 hours short of reaching FMLA eligibility and had other leave available to cover the gap.

Ena sued, alleging that the employer interfered with her right to FMLA leave and that she would have used her FMLA time to make up the 10 hours per week that her doctor’s re­­striction prevented her from working.

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The employer argued it was free to fire Ena up until she was actually FMLA eligible.

The court disagreed. It explained that FMLA is an entitlement and that employers must allow em­­ployees to reach FMLA eligibility if they have enough other leave available to get there. (Wages v. Stuart Management, No. 12-2905, DC MN, 2014)

Final note: The court said it would be a different matter if the eligibility date had been much later and Ena could not have reached it using available leave. How­­ever, she might then have been eligible for a reasonable accommodation under the ADA.