The definition of when an employee is protected by FMLA was recently expanded by a decision of the Eleventh Circuit Court of Appeals. According to attorneys Jeff Nowak and Eric B. Meyer the decision on Pereda v. Brookdale Senior Living Communities, Inc. altered how a request for FMLA leave must be considered. According to Eric “…in 2005, a Pennsylvania federal court recognized ….that an employee’s FMLA rights become sacrosanct upon requesting FMLA — even if the employee is not yet FMLA-eligible — provided that the employee has satisfied all FMLA service requirements when the FMLA begins.”
The Perda case dealt with a woman who was pregnant and was requesting leave under the FMLA even though she had not yet been at the company for 12 months or worked the requisite 1250 hours. A no brainer for denial you say? Hold on, she was going to be eligible by the time the baby’s birth occured. However, prior to that event arriving the company terminated her. The court hearing the case looked at the regulation about eligibility and it read:
“The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d).
As Jeff Nowak points out ” So, the answer is easy enough: when assessing an employee’s eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin. If an employer terminates the employee ‘in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,’ the employee could advance an FMLA interference claim.
Both Jeff and Eric both offer suggestions for employers in dealing with FMLA leave requests.
“Keep in mind that the FMLA requires a 30-day notice for foreseeable leave. This is particularly true for the birth of a child. An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.” Additionally “… don’t treat your employee differently after the leave request has been made.”
- Don’t automatically disregard an FMLA request from an employee who has not satisfied all service requirements at the time of the request.
- The scope of the Pareda decision goes beyond pregnancy. … Therefore, it is broad enough to encompass any request for foreseeable FMLA leave.
- The employee does not get a free pass in between.
- An employee has no legal right to commence FMLA leave early.
- Be sure to check state rules on employee leave.
Both attorneys make it clear that employers are allowed to hold employees requesting FMLA to the same work performance standards to which all other employees are being held. But you CANNOT avoid your responsibility as an employer under the law by playing games with timing. Genuine concerns can be dealt with but trumped up reasons used to terminate someone just to avoid FMLA leave will get an employer in trouble.
Thanks to both Jeff Nowak and Eric B. Meyer for their inspiration in this post.