Ineligible Employees May Be Protected By FMLA

January 23, 2012

Employers subject to the Family Medical Leave Act (FMLA) know that for an employee to be eligible for FMLA leave, he or she must have: 1) worked for the company for at least 12 months; and, 2) have worked at least 1250 hours during the previous 12 months.  However, would the FMLA protect a relatively new employee who is not yet eligible for FMLA leave if the employee gives notice of an intent to take FMLA leave after the employee would be eligible?  Recently, the Eleventh Circuit Court of Appeals found that such an employee would be protected by the Act. ¹

What Happened

Kathryn Pereda started work with Brookdale Senior Living Community on October 5, 2008.  In June 2009, Pererda let her employer know that she was pregnant and would be requesting FMLA following the birth of her child in November 2009.  In September 2009, only 11 months after her hire, she was fired.

Pereda sued her employer alleging that her termination was interference with her rights under the FMLA and/or retaliation.  The trial court threw the case out finding that because Pereda had only worked for the company for 11 months that she was not eligible for protection under the FMLA.

The Appeal

On Pereda’s interference claim, the Eleventh Circuit found that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.”  The court indicated that it was not expanding the FMLA to cover a new class of employees but, rather a way of protecting employees from employers who attempt to “avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

On Pereda’s retaliation claim, the court found that since it had already determined that the FMLA protects pre-eligible requests from employees for post-eligible leave, that the FMLA also protects employees from retaliation for making such requests.

Now the case heads back to the trial court to determine whether the employer’s reason for terminating the employee was valid, or whether that reason was a pretext for violating the employee’s protected status under the FMLA.

What this Means for You

Employers subject to the FMLA know that they must be careful in making decisions affecting the employment status of employees who are eligible for FMLA leave and have made a request for such leave.  This case means that employers will also need to be careful with those same decisions even if the employee is not yet eligible for leave, but has indicated that it will be taking FMLA once the employee is eligible.