A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination. Pereda v. Brookdale Senior Living Communities, Inc., (1/10/12).
Eight months into her employment, the plaintiff told her employer she was pregnant and would need FMLA leave for her child’s birth, which would occur after she had met the FMLA eligibility requirements. The employer discharged plaintiff before she had completed 12 months of employment.
The Eleventh Circuit held that because the FMLA requires notice prior to leave, employees are protected from interference prior to the occurrence of the triggering event such as the birth of a child. If it were to hold otherwise, the Court said, the advanced notice requirement “becomes a trap for newer employees.” The court added that because “ 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.”
The Court also held that a pre-eligible request for post-eligible leave is protected activity sufficient to support an FMLA retaliation claim. Quoting an Oklahoma federal district court decision, the Court noted that “if courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law…”