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Employer Law Report

Notice of Intent to Take FMLA Leave May Just Be Enough

Posted in Leave Administration

Last month, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) held that a pregnant employee, who provided several months notice to her employer of her intention to take leave upon the birth of her child, was protected under the Family and Medical Leave Act ("FMLA") despite the fact that at the time she provided the notice, she was not eligible for FMLA. In short, the court held that the FMLA protected employees who make pre-eligibility requests for post-eligibility leave from both interference with the leave and from retaliation.

Appellant Kathryn Pereda ("Pereda") began working for Brookdale Senior Living Communities, Inc. on October 5, 2008. In June of 2009, Pereda advised Brookdale of her pregnancy and that she would be requesting FMLA leave around November 30, 2009, after the birth of her child.

Pereda alleges everything changed after she announced her pregnancy. First, she was no longer considered one of the top employees at Brookdale. Second, Brookdale began harassing her, causing stress and complications in her pregnancy. Third, Brookdale’s management placed her on a performance improvement plan with unattainable goals. Lastly, Pereda alleges that although she was eligible for sick and personal leave and was told she could use that time for doctor’s visits, management wrote her up for taking leave time to visit the doctor.

In August of 2009, Pereda took a few days off, and notified Brookdale management of her absence via email. When she returned to work she was written up for failure to obtain verbal authorization for her absence.

In September 2009, Pereda’s physician placed her on bed rest. Pereda left a phone message with the executive director, but did not receive a return call. Pereda was unable to reach someone at Brookdale until several days later, at which time she was fired.

Pereda filed a Complaint against Brookdale on May 11, 2010, asserting that "Brookdale interfered with her FMLA rights, insofar as Brookdale denied her benefits under the FMLA to which she was entitled, and terminated her for attempting to exercise those rights."

Brookdale filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court granted Brookdale’s motion on September 22, 2010, holding, Pereda was not eligible for FMLA leave, so Brookdale could not have interfered with her FMLA rights. The court also held, since Pereda was not eligible for FMLA leave, she could not have engaged in protected activity, and Brookdale could not have retaliated against her.

Pereda appealed the district court’s dismissal of her two-count complaint to the Eleventh Circuit Court of Appeals presenting an issue of first impression: whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave. The Court answered in the affirmative.

29 C.F.R. § 825.110(d) defines an eligible employee as one who has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months as of the date the FMLA leave is to start.

The district court reasoned that the FMLA did not grant employees the right to request leave before becoming eligible and, since Pereda was not eligible for FMLA leave when she made a request, she had not exercised a protected right.

Upon examining the various elements of the FMLA regulatory scheme, the Eleventh Circuit found the lower court ruling would violate the purposes for which the FMLA was enacted. For example, the FMLA requires employees provide their employers with 30-day advance notice for foreseeable absences; therefore, if the Court does not protect against pre-eligibility interference, a loophole is created.

The Court held, because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of the triggering event. Pereda complied with 29 U.S.C. § 2612(e)(1) when she provided Brookdale with over 30 days’ notice of her intention to take leave. "As the statute requires advance notice, logic mandates that FMLA be read to allow a cause of action for employees who, like Pereda, in goodwill exceed the notice requirement."

The Court also held that a pre-eligibility request for post-eligible leave is a protected activity because the FMLA aims to support employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave. Employees need not be currently exercising their rights or currently eligible for FMLA leave in order to be protected from retaliation.

The Court overturned the district court’s ruling, finding Pereda stated sufficient facts to establish prima facie claims for both FMLA interference and retaliation.

The Pereda decision highlights that, at least in the 11th Circuit, even if an employee is not eligible at the time he/she requests FMLA leave, the FMLA still will protect the employee from interference with the right to take the leave once eligible and from retaliation for having made the request. Although this scenario is most likely to arise in the pregnancy context, there is no reason to believe that the 11th Circuit’s rationale won’t also apply in other FMLA contexts as well.