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.
Courts have long held that invoking the protections of a statute is “protected activity,” and the Court noted that its ruling was that simple – the pre-eligibility discussion of post-eligible leave under FMLA is protected activity.
Some practical observations:
- Anticipate more employees will give notice of an upcoming need for FMLA leave even before the employee is eligible. This case incentivizes that behavior, as it provides added protection to the employee.
- Handle a pre-eligibility FMLA leave request according to ordinary procedures. The request should be documented, and only a limited number of persons should know about, or be involved in evaluating, the request.
- Be attentive to the fact that “pre-eligible” leave requests are protected conduct. Just as in any disciplinary action, especially a termination, be attentive and deliberate in ensuring that the discipline is imposed for legitimate reasons. Best practices suggest that the employee be given the opportunity to “have her say” about what occurred before imposing the discipline for the behavior.