Bradley & Riley PC

Gone are the days when employers needn't fear potential claims under the Family and Medical Leave Act until an employee met the FMLA's measureable requirements for eligibility. In a January 2012 decision, the 11th Circuit Court of Appeals ruled that FMLA eligibility might not be necessary to state an FMLA claim.

The Family and Medical Leave Act, 29 U.S.C. §2601, et seq., provides that "eligible" employees are entitled to take unpaid leave to, among other things, attend to a family or personal serious health condition.  For an employee to be "eligible" for FMLA leave, the employee must have been employed by the employer for at least 12 months and worked at least 1,250 hours during the 12 months preceding the request for leave. 29 U.S.C. §2611(2)(A).  The employee must notify the employer at least 30 days before the expected leave date if leave is foreseeable. 29 U.S.C. §2612(e).  An employer may not interfere with an employee's attempt to exercise FMLA rights or retaliate against an employee who exercises FMLA rights. See 29 U.S.C. §2615(a)(1) & (2).

But what should an employer do if an employee asks for FMLA leave shortly before the employee becomes "eligible?"  For example, what if an employee with 11-1/2 months of service, including more than 1,250 hours of work, notifies the employer that he or she will need FMLA leave in six weeks to care for a newborn?  Or, what if an employee with 11+ months of service requests intermittent leave commencing in 30 days? Strictly speaking, neither employee is eligible under the FMLA definition.

The foregoing questions may have been answered in the 11th Circuit's ruling in Pereda v. Brookdale, 2012 WL 43271 (11th Cir. 2012).  That case holds that present eligibility is not a pre-requisite to claims under the FMLA, but rather that eligibility should be measured as of the date the leave would begin.

Kathryn Pereda began work at Brookdale Senior Living Community onOctober 5, 2008.  In June 2009, Pereda informed Brookdale that she was pregnant and would be requesting FMLA leave after the birth of her child (in approximately November 2009).  There was no dispute that Pereda would have been eligible for FMLA leave at the time her leave was set to start.  Brookdale terminated her employment in September 2009.

Pereda sued Brookdale for both interference and retaliation under the FMLA.  Brookdale argued that because Pereda was not entitled to FMLA leave at the time of termination, they could not have interfered with her FMLA rights or retaliated against her for exercising the non-existent rights.  The district court agreed with Brookdale and dismissed the lawsuit.

The Court of Appeals reversed the district court's ruling.  In finding that Pereda had FMLA rights prior to eligibility, the Court relied upon the FMLA's requirement that "employees" (not "eligible employees") give notice in advance of future leave. 29 U.S.C. §2612(e)(1).   The Court determined that the language of the advance notice requirement contemplates pre-eligibility requests for leave and "[i]t 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 retaliation, or interference, for which they have no remedy." Id. *3.   Therefore, a pre-eligibility request for post-eligibility leave is a protected activity under the FMLA.

The 11th Circuit covers the southeastern United States.  Because the FMLA is a federal law, the Perada decision has some influence in the 8th Circuit, which includes Iowa.  And while the 8th Circuit has yet to weigh in on whether a pre-eligibility request for post-eligibility leave is a protected activity, employers must tread gingerly on any requests for FMLA leave shortly before an employee becomes eligible.

For more information contact : Natalie Ditmars, Bradley & Riley PC 2007 1st Ave SE Cedar Rapids, IA 52406 (319)363-0101 E-mail:

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