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Ruling May Expand FMLA Protection

SomePregnant Woman companies assume they can ignore the Family and Medical Leave Act (FMLA) when it comes to employees who haven’t yet reached their anniversary dates. Yet that belief was directly overturned this month by the Eleventh Circuit, which covers Florida, Georgia, and Alabama.

Pereda v. Brookdale Senior Living Communities, Inc. addressed the question of whether a first-year employee – in other words, a worker who had not yet reached eligibility for FMLA leave – had job protection when she requested leave that would begin after she became eligible (i.e., her anniversary date).  The appeals court responded in the affirmative, giving protection from termination to a worker who did not technically meet the statute’s definition of an “eligible employee.” This decision makes the Eleventh Circuit the nation’s first to rule on the issue.


The plaintiff in Pereda began employment at Brookdale Senior Living Communities in October 2008. Then in June 2009 announced she was pregnant; at this time she also notified her employer that she planned to request FMLA leave after giving birth to her child in late November 2009.  Under the FMLA, an “eligible employee” must be employed for at least 12 months and complete at least 1,250 of service during the previous 12-month period.  The plaintiff had not yet gained the status of an “eligible employee” in June 2009 when she announced her intention to take FMLA leave later that year.  Nor was she an eligible employee in September 2009 when Brookdale managers fired her. But the appeals court re-interpreted the definition of “eligible employee,” reasoning that because the worker would have been an eligible employee at the time she had planned to take leave, she was protected from termination under the FMLA.  The court wrote that concluding otherwise “would violate the purposes for which the FMLA was enacted,” creating “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.”

The Eleventh Circuit Court’s most persuasive reasoning, perhaps, appears when citing a section of FMLA that mandates “employees” (but not necessarily “eligible” employees) to provide their employers with a minimum of 30 days’ notice before taking anticipated leave based on an upcoming birth.  The court determined that an alternate decision in this case would entrap some employees in a lose-lose situation where they had to choose between complying with the notice requirement (but subjecting themselves to risk of retaliatory termination), or waiting for the anniversary date to arrive (but NOT complying with the notice requirement).

The expanded definition of “eligible employee” resulting from this case generates many unanswered questions about the circumstances under which employees are protected under FMLA.  Hunton Employment and Labor Perspectives imagined the following scenarios:

  • What if an 11-month employee says during Thanksgiving week that he is “leaning toward” having surgery on his trick knee after the New Year, likely keeping him on FMLA leave for a month or so?
  • What if a just-hired employee says in January of Year 1 that she and her husband have applied for adoption of a Russian child, a lengthy process that will, if they are approved (a questionable proposition), necessitate their going overseas for a couple of months in the middle of Year 2.  What if the individual had shared this during the pre-hire process?
  • What if an 11-month employee shares that she and her sister are deciding which of them will take three months off from work next year to care for their mother, who is scheduled at that time to move out of a nursing home?  What if the employer elects to terminate the employee the following week, and the mother dies the week after that?

If you or someone you know is the victim of wrongful termination, workplace discrimination, or retaliatory practices, contact a Seattle Employment Attorney for assistance with your case.  Our L&I attorneys also represent employees who seek workers compensation benefits or who need any other assistance with work injury claims through the Department of Labor and Industries.

Read here for more news on FMLA, sick leave and employment law.

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