Employee Who Requests Family and Medical Leave Act (“FMLA”) Leave Prior to Becoming Eligible for Leave Has Engaged in Protected Activity

By: Lisa M. Schonbeck, Esq.

Consider the following hypothetical: An employee requests FMLA-protected leave before she has met the eligibility requirements to be entitled to such leave (i.e., before she has worked for the employer for a full 12 months and has completed 1,250 hours during a 12-month period). If the employer denies this leave and later terminates the employee, any claim by the employee for retaliation and interference under the FMLA would fail because she was not eligible at the time of the request, right? Not necessarily.

On January 10, 2012, the United States Court of Appeals for the Eleventh Circuit held that the Family and Medical Leave Act of 1993 (“FMLA”) protects an employee’s pre-eligibility request for post-eligibility leave. Pereda v. Brookdale Senior Living Communities, Inc., 2012 U.S. App. LEXIS 492 (11th Cir. 2012).

The basis for the Court’s holding? The advance notice requirement contained in the FMLA could not reasonably expose employees “to retaliation, or interference, for which they have no remedy.”

The Facts

Eight months into her employment with Brookdale Senior Living Communities (“Brookdale”), the employee notified Brookdale that she was pregnant and would need FMLA leave for the birth of her child, which was to begin several months later. The employee alleges that, shortly after she submitted her FMLA request, Brookdale began harassing her and put her on a performance plan with impossible goals. Eventually, Brookdale fired the employee in September 2009, before she became eligible for FMLA leave.

The Suit

The employee filed suit against Brookdale, alleging interference and retaliation claims under the FMLA. The district court ruled in favor of Brookdale, stating that the employee had not yet satisfied the requirements for FMLA leave, i.e., she had not yet been employed for 12 months, she had not yet worked 1,250 hours during a 12-month period, and she had not yet delivered her baby. Therefore, the district court held, the employee could not state a claim for retaliation and interference under the FMLA.

The Holding

In order to receive FMLA protections, an employee must:

(1) Be eligible, i.e., must have worked the requisite hours; and

(2) Be entitled to leave, i.e., she must have experienced a triggering event, such as the birth of a child.

The Court noted that it was undisputed that the employee was not eligible for FMLA leave at the time she requested the leave, and she had not yet experienced a triggering event when she was terminated. Nevertheless, the Eleventh Circuit reversed the district court’s decision and held that, with respect to the claim for unlawful interference with her rights under the FMLA, “a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” According to the Court, the fact that the FMLA requires employees to provide advance notice of future leave necessarily means that “employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” In addition, the court noted that “without remedy, the advanced notice requirement becomes a trap for newer employees and extends to employers a significant exemption from liability.”

Turning to the employee’s claim for retaliation, the court held that “a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”  Thus, the employee was permitted to go forward with her retaliation and interference claims against Brookdale.

What Effect Does This Case Have on My Business?

This case instructs that if an employee makes a request for FMLA leave before he or she is eligible for that leave and that leave will begin after he or she is eligible, the employer should treat the request as protected activity under the FMLA. In other words, any adverse action, such as termination or harassment, occurring shortly after the request may lead to retaliation and interference claims under the FMLA.

Although Pereda is a case of first impression and other courts, such as the Third Circuit, have not yet adopted its reasoning, employers should tread lightly when dealing with employees who have submitted requests for post-eligibility leave prior to becoming eligible under the FMLA. Leech Tishman’s Employment Practice Group is available to assist you in properly handling your employees’ FMLA requests, which can help you avoid liability.

Lisa M. Schonbeck is an associate at Leech Tishman and practices in the Employment and Litigation Practice Groups. Lisa can be reached at 412.261.1600 x 233 or lschonbeck@leechtishman.com. Please feel free to contact Lisa with any questions regarding the recent developments with the FMLA or any other employment law issue.

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