Assume an employee asks for leave, to be taken in the future. At the time of the request, the employee is not covered by the FMLA because the employee has not yet been employed for one year. Later, the employee is terminated, and the termination occurs before the employee has been employed for a year. Does the employee’s advance request for leave make the employee “protected” under the FMLA, even though the employee was never eligible for leave?
In a ruling on January 10, 2012, the 11th Circuit recently said yes. The Court found that the FMLA “protects a pre-eligibility request for post-eligibility leave.” The Court reversed the lower court’s dismissal of the case, explaining that the lower court’s ruling would allow an employer to terminate an employee to avoid having to provide rightful FMLA leave once the employee becomes eligible. Continue Reading Employee Not Yet Eligible for Leave Still Protected Under FMLA