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Eleventh Circuit Pereda Case: FMLA Protection for Employees Not Eligible for FMLA Leave?

by Martin Salcedo, Esq. - The Human Equation on 2/22/2012
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The Eleventh Circuit Court of Appeals recently answered an interesting and important question regarding the Family and Medical Leave Act (FMLA): Does the FMLA protect a pre-eligibility request for post-eligibility leave?

The FMLA was enacted to balance the demands of the workplace with the needs of families by allowing eligible employees reasonable leave for various qualifying reasons, including health, military caregiver, and family leave. An “eligible employee” is generally one who has worked for at least twelve months, and who has worked at least 1,250 hours during the previous 12-month period. An eligible employee must also experience a triggering event, such as the birth of a child or a serious health condition.

In Pereda v. Brookdale Senior Living Communities, the plaintiff notified her employer of her pregnancy and that she would be requesting FMLA leave upon giving birth. At the time she requested leave, the plaintiff was not eligible for FMLA protection because she had not worked 1,250 hours and had not experienced a triggering event. However, she would have been entitled to FMLA protection by the anticipated due date.

According to the plaintiff, after disclosing the pregnancy, her employer began harassing her, writing her up, and giving her negative performance reviews. After being fired for taking medically recommended time off, the plaintiff sued under the FMLA. She brought a claim for interference, because her employer allegedly denied or interfered with her rights under the FMLA; and for retaliation, because her employer allegedly discriminated against her for engaging in an activity protected by the FMLA.

The Court addressed each claim separately.

FMLA Interference

The Court held that employees are protected from FMLA interference prior to the occurrence of a triggering event, such as the birth of a child. Relying on the FMLA’s notice provision, which requires that employees provide employers with at least thirty day’s notice when the need for leave is foreseeable, the Court reasoned that it would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to interference, for which they have no remedy.

Without a remedy, the Court noted, the FMLA’s advanced notice requirement becomes a trap for newer employees and gives employers a significant exemption from liability. According to the Court, “an expectant mother who is along in her pregnancy cannot hide that, in due time, she will give birth to a child. By the very nature of the fact that a full-term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by their employer.”

Thus, in the context of FMLA interference, the Court held that 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.

FMLA Retaliation

The FMLA makes it "unlawful for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise, any right" provided under the FMLA. The FMLA also protects employees and prospective employees even if the individual is not currently eligible or entitled to leave.

To make a claim for FMLA retaliation, an employee must show that: “(1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and (3) the decision was casually related to a protected activity.”

Having already held that the FMLA protects a pre-eligibility request for post-eligibility leave, the Court had little difficulty holding that such a pre-eligible request leave is protected activity. The Court noted that 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.

Acknowledging the potentially slippery slope of its ruling, the Court made two significant statements. First, the Court reiterated that its holding does not expand FMLA coverage to a new class of employees. According to the Court, it simply held that 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.

Second, the Court stated that a scenario in which an employee works eight hours and then requests foreseeable FMLA leave beginning in 364 days is a non-starter. That employee, the Court reasoned, still could be terminated for legitimate reasons, such as poor performance or dishonesty, or the employee’s failure to meet other requirements of the FMLA.

Though this case appears to expand the scope of protection afforded by the FMLA, and arguably does, in reality, it generally holds that employers cannot ignore employees’ rights under the FMLA, or retaliate against them for asserting those rights. Nevertheless, as a result of the Court’s opinion, covered employers must proceed cautiously when they receive notice that an employee intends to take FMLA leave, particularly if that employee is not currently eligible for such leave.

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