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."


Continue Reading Notice of Intent to Take FMLA Leave May Just Be Enough

The Ohio Fifth District Court of Appeals last week released an opinion in Nursing Care Mgmt. of Am., Inc. v. Ohio Civ. Rights Comm’n, that upheld the Ohio Civil Rights Commission’s determination that an employer unlawfully terminated an employee on the basis of pregnancy when the employer terminated the employee because she required pregnancy-related disability leave but had not met the minimum length of service requirements for maternity leave under the employer’s leave policy.
Continue Reading Ohio Fifth District Court of Appeals Decision Requires That Employers Provide a Reasonable Period of Time for Unpaid Maternity Leave Regardless of Length of Service or Leave Policy

Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.
Continue Reading Recent Sixth Circuit Decision Authorizes Creative Solution to Address Runaway Intermittent Leave

With each passing day, it appears more likely that Ohioans will be going to the polls on November 4, 2008 to vote on whether employers that employ at least 25 workers in Ohio will be required by law to provide workers with up to seven days of paid sick leave annually. Passage of this measure would be both costly and disruptive to Ohio businesses. As a result, Ohio’s business community must become more vocal in educating the voting public, particularly their employees, on the detriments of the so-called Ohio Healthy Families Act and, at the same time, begin taking steps to prepare for its potential enactment.


Continue Reading Potential For Paid Sick Leave Mandate Warrants Pro-Active Strategy

Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 


Continue Reading FMLA Update – Are You Posted?