An employee does not become eligible to take FMLA
leave until he or she has worked at least 1,250 hours and 12 months. But,
according to the 11th Circuit, being eligible to take leave is not the same as
being eligible to request leave. Employers should be mindful of the court's
recent opinion when a recently hired employee submits a request for FMLA.
v. Brookdale Senior Living Communities, Inc. [an enhanced version of this opinion is available to lexis.com subscribers,
the plaintiff-employee submitted a request to take FMLA. At the time the request
was made, she had not yet passed her one-year anniversary, making her
ineligible to take leave. However, the requested leave would have begun after
the 12-month mark, when she would have been eligible for FMLA. The employer
terminated her before the end of her first year.
The 11th Circuit was asked to decide whether the employee
could pursue a claim under the FMLA. In order to make that decision, the court
had to determine whether the employee could be considered an "eligible
employee" for purposes of the FMLA. As you may imagine, the employer
argued that the employee was not an "eligible employee" at the time
she was terminated and, therefore, was not protected by the statute.
The court disagreed, finding that eligibility is
determined at the time the employee would have taken leave. Here, she would
have been eligible for leave because, by that time, she would have been
employed for the full 12 months. According to Hunton Labor &
Employment Perspectives Blog, the 11th Circuit is the first federal court
of appeals to have faced this question.
Although the ruling may come as a surprise to many
employers, I think that common sense and good intent would deliver the same
outcome. An employer would be well advised to be aware of the message it would
be sending by terminating an employee who gives timely notice of her need for
FMLA leave. In other words, the employer would be encouraging employees who had
a legitimate need for leave to keep mum about the need until completing the
first year of employment. It seems that employers would want to have as much
notice as possible so it could make the necessary arrangements in planning for
the employee's absence.
v. Brookdale Senior Living Communities, Inc., No.
10-14723 (11th Cir. Jan. 10, 2012).
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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