USA
January 16 2012
As most employers know, the Family Medical Leave Act (“FMLA”) protects employees of covered employers who take leave for specified family and medical reasons by affording the employee unpaid, job protected leave with continuation of group health insurance coverage.
To be eligible for leave, the employee must have worked the requisite number of hours and be entitled to leave because of a triggering event such as the birth of a child. In a case of first impression for the Eleventh Circuit Court of Appeals, Pereda v. Brookdale Senior Living Communities, Inc., the Court held that the FMLA does, in fact, protect employees who make a pre-eligibility request for post-eligible leave.
Pereda began working for Brookdale, a senior living facility, in October 2008, and was terminated 11 months later in September 2009. In June, she advised her employer that she was pregnant and that she would be requesting FMLA leave in November 2009. Pereda claims that after Brookdale learned of her pregnancy, she was harassed and later placed on a performance improvement plan, which caused her stress and other complications with her pregnancy. She was then terminated.
Brookdale argued that because Pereda was not eligible for FMLA leave, they could not have interfered with her FMLA rights or retaliated against her. The district court agreed, but that decision was overturned by the Eleventh Circuit.
In finding that Pereda did state a claim for both interference and retaliation related to her FMLA rights, the Court relied on the FMLA regulatory scheme, which includes the 30-day notice requirement and the Department of Labor implementing regulations.
The Court reasoned that “without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can become eligible. Such a situation is contrary to the basic concept of the FMLA.”
The lesson for employers to take away is that they should be very careful in how they handle FMLA issues, specifically pre-eligible requests. The purpose of the FMLA is for the protection of the employee and the law will construed in that fashion
Howard Vex responded:
When a Judge wants to cosntrue a statute broadly, he or she can almost always come up with reasons why the statute covers situations far beyond what the draftters of the statute intended. While that is not necessarily the case here, this is just one more reason why it is so easy for HR Professionals to get in trouble with these laws. There are often grey areas that can go either way and the cses interpreting these grey areas are only good law until a new case comes along..