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Yup, you heard right.

This issue was most recently addressed in Pereda v. Brookdale Senior Living Communities, Inc., a case out of the Eleventh Circuit, which built upon a Pennsylvania case, Beffert v. Pa. Dept. of Pub. Welfare.

In Pereda, the court held that the Family and Medical Leave Act protected a pregnant employee who was fired after requesting leave, despite the fact that she was not yet FMLA-eligible at the time she made the request, because she would have been eligible when the leave was to begin.

The facts of the case are as follows.  Ms. Pereda’s employment with Brookdale began in October 2008.  In June 2009, she informed the employer that she was pregnant and due at the end of November.  Brookdale fired Ms. Pereda in September 2009.  As of the date of her termination, Ms. Pereda had been employed with Brookdale for 11 months (not the 12 months required under the FMLA) and 2 months before her leave was set to begin.  In response to her termination, Ms. Pereda sued Brookdale for FMLA interference (denied her FMLA leave) and FMLA retaliation (fired for attempting to exercise those rights).

The Eleventh Circuit first looked to the FMLA regulation regarding eligibility:

“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. s. 835.110(d).

Based on these facts, the Eleventh Circuit found that failure to protect Ms. Pereda could have the far-reaching consequence of creating a loophole through which an employer could have total freedom to terminate an employee before he/she became eligible for FMLA leave.  This was of particular concern given the FMLA’s requirement that an employee provide 30 days’ advance notice for foreseeable leave.

The takeaway from this is simple but very important: an employer cannot automatically disregard an employee’s FMLA request simply because he/she is not FMLA-eligible at the time the request is made.  This does not simply apply to pregnancy situations; it applies to any situation involving foreseeable FMLA leave.

Did this surprise you at all?  Had you ever thought about this?  Let us know!

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