Does The FMLA Protect An Employee’s Pre-Eligibility Request For Post-Eligibility Leave? The Eleventh Circuit Says “Yes””

Randi Klein Hyatt
Randi Klein Hyatt
01/19/2012

The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave for the birth or placement of a child or for a serious health condition of the employee or the employee’s spouse, child, or parent.  “Eligible employees” are those who have worked at least 1,250 hours in the past 12 twelve months and have been employed by the employer for a total of at least 12 months as of the date the FMLA leave is to start.  The FMLA also requires employees to give advance notice (at least 30 days) of the need for leave when foreseeable.  There may be instances, then, when an employee, prior to becoming eligible under the statute, gives advance notice of anticipated need for leave occurring after she meets the FMLA’s eligibility requirements.

This was the situation for Kathryn Pereda, who claimed that after she notified her employer of her anticipated maternity leave, she was fired to keep her from becoming eligible to take that leave.  In October 2008, Pereda started working for an assisted living facility operated by Brookdale Senior Living Communities Inc.  In June 2009, Pereda told her supervisor that she was pregnant and would need to take FMLA leave after the birth of her child anticipated on November 30, 2009.  At the time she gave notice, Pereda had worked for Brookdale for less than 12 months, and therefore, was not eligible to take FMLA leave at that time.  By the time she gave birth, however, Pereda would be eligible to do so.

In her lawsuit against Brookdale, Pereda alleged that as soon as she gave notice of her anticipated need for FMLA leave, she was subjected to repeated harassment and ultimately fired in September 2009, a month shy of meeting the FMLA eligibility requirements.  Pereda claimed that by terminating her, Brookdale interfered with her rights under the FMLA and retaliated against her for requesting FMLA leave.  The trial court dismissed Pereda’s claims, holding that because she was not eligible for FMLA leave at the time of her termination, Pereda had no FMLA claim against Brookdale.

On appeal, the Eleventh Circuit disagreed.  Noting that the FMLA requires employees to provide advance notice (at least 30 days) of the need for leave, the court found that the statute must “necessarily protect pre-eligible employees such as Pereda, who put their employers on notice of a post-eligibility leave request.”  The court held that a pre-eligible employee has an FMLA interference claim if the employer fires the employee to avoid having to accommodate her leave once she becomes eligible.

The court also held that Pereda stated a claim for FMLA retaliation, because her notice of her need for leave was activity protected under the statute.  Rejecting the employer’s argument that its decision would result in a “slippery slope” where employees could be deemed FMLA eligible after the first week on the job, the court clarified that its decision “simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity.”   Pereda v. Brookdale Senior Living Communities Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).

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