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Employees May Bring FMLA Claims Even When They Are Not Eligible for FMLA Leave


This week, the Eleventh Circuit held that a former employee may pursue FMLA claims against her employer, despite the fact that she was a new employee and failed to meet the eligibility requirements under the law.  How is this possible?   

In Pereda v. Brookdale Senior Living Communities, Inc., 11th Cir., No. 10-14723, Jan. 10, 2012, an employee gave advanced notice of her need for FMLA leave in connection with her pregnancy.  Shortly after informing her employer of her pregnancy, the employee was placed on a performance improvement plan and ultimately terminated from her position.  The now former employee brought FMLA interference and retaliation claims against her employer.   

At the time the employee made the request for leave, she had not met the FMLA’s eligibility requirements.  Her employer, Brookdale, alleged that her FMLA claims failed because she was not eligible for FMLA leave.  It was undisputed that the employee would have met the eligibility requirements at the time she would have taken her leave.  The former employee asserted that if her FMLA claims were not permitted to proceed, employees would fear that they would be retaliated against for providing advanced notice of their need for leave as required under the FMLA.   

The Eleventh Circuit ruled that because the FMLA requires employees to provide advanced notice of their need for FMLA leave in some instances, employees who provide such notice are protected from interference prior to the event for which leave is needed (in this case, pregnancy).  With respect to the FMLA retaliation claim, the Eleventh Circuit held that the employee engaged in protected activity when she made a pre-eligible request for post-eligible leave.  As a result, the Eleventh Circuit ruled that the former employee could pursue her FMLA interference and retaliation claims.   

This issue has not yet been addressed by other circuit courts.  Therefore, at the moment, only employers in the Eleventh Circuit must comply with this precedent.  However, employers should be mindful that other courts could find the Eleventh Circuit’s reasoning persuasive if faced with similar employee claims.  Bottom line?  When analyzing the risk of an employee termination, an employer must consider the potential for FMLA claims, even by an employee who has yet to meet the FMLA's eligibility requirements.  Moreover, an employee who is denied a leave request may bring other claims under the Americans With Disabilities Act or similar state law. 

In two upcoming webinars, we address the risks associated with denying employee leave requests, including complications resulting from the interplay of the ADA, FMLA and other state laws.  Please join us to review best practices in leave administration:   

January 19, 2012 -  The Painful Pentagon: FMLA, ADA, GINA, WC and STD     

(One-Hour Webinar) https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=28234   

 

February 8, 2012 - Leaves of Absence - Lessons Learned    

(One Hour Webinar) https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=28242 

 
 
 
 
 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.