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FMLA Protects Workers Even Before They Are Eligible for FMLA Leave

In a case of first impression, the United States Court of Appeals for the Eleventh Circuit recently held that the Family and Medical Leave Act (“FMLA” or the “Act”) protected a pregnant worker who was fired after she requested leave, despite the fact that she was not eligible for FMLA leave when she made the request, because she would have been eligible at the time the leave was to have been taken.  The case, Pereda v. Brookdale Senior Living Facilities, Inc., is an important case for employers to heed.

By way of background, the FMLA provides certain employees with up to twelve weeks of unpaid, job-protected leave per year.  To qualify for this category of FMLA leave, an individual must have worked for a covered employer for at least 1,250 hours in the twelve months preceding the leave, and must experience a triggering event, such as the birth of a child.  An employee may bring two types of claims under the FMLA: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in an activity protected by the Act.

A number of cases have addressed the issue of whether an individual who has not yet worked 1,250 hours over twelve months is eligible for FMLA leave (he is not) and whether an individual who is on leave at the 1,250/twelve-month mark can convert the non-FMLA leave to FMLA leave at that time (he can).  However, few courts have addressed the issue of whether an employee who makes a pre-eligibility request for post-eligibility FMLA leave is protected.  With Pereda, the Eleventh Circuit joins the ranks of courts that have, holding that the FMLA protects a pre-eligibility request for post-eligibility maternity leave.

The facts of Pereda are straightforward.  Ms. Pereda began working for Brookdale Senior Living Facilities (“Brookdale”) in October 2008.  In June of 2009, Ms. Pereda told her employer that she was pregnant, and due to give birth at the end of November.  According to Ms. Pereda, after she disclosed her pregnancy and her future need for leave, she was subjected to harassment and retaliation when she used accrued sick and vacation days to deal with pregnancy-related complications.  Ultimately, in September 2009 she was fired, after eleven months of employment and more than two months before her leave was scheduled to begin.  She sued for interference and retaliation under the FMLA, claiming that Brookdale denied her rights under the FMLA to which she was entitled and terminated her for attempting to exercise those rights.

The district court dismissed Ms. Pereda’s complaint, holding that Brookdale could not have interfered with Ms. Pereda’s FMLA rights because she was not entitled to FMLA leave at the time that she requested it.  The district court also held that since Ms. Pereda was not eligible for FMLA leave, and was therefore not protected, she could not have been subjected to retaliation for engaging in protected activity.

On appeal, Ms. Pereda argued that if the lower court’s decision were to stand, employees will fear mentioning leave in anticipation of the birth of a child, and would not provide their employers with adequate notice of an impending absence in fear of retaliation.  The Eleventh Circuit agreed, stating that if employees are not protected against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible for leave. Because the FMLA requires thirty days’ advance notice of intent to take leave whenever possible, the Court continued, logic mandates that the FMLA must protect employees who, like Ms. Pereda, meet or exceed the notice requirement.  Accordingly, the Court held that a pre-eligible request for post-eligible leave is protected activity under the FMLA.

The Pereda decision is narrow, and stands only for the proposition that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA.  It means, however, that although an employee may still be terminated at any time for legitimate reasons, employers should take care before terminating an employee who has discussed or requested FMLA leave, even if that the employee is not yet eligible for leave.

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Martha Zackin