Your 11-month employee just requested FMLA leave. Can you fire her before leave begins in the 12th month?

You’re not seriously considering doing this, are you?

Hey! I promised you a big announcement!

Yes, I did.

Before I stick a pin in your FMLA-shenanigans balloon, I’d like to invite you to a webinar.

A webinar? How good could it possibly be? Oh, it’s only the “The Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented.

And, if you subscribe to this blog via email, and your subscription settings include receiving notification of webinars, then you got a one-hour head start to register on the suckers that don’t for one of the limited spaces.

(If you’d like to fix that so you don’t miss out on future opportunities, I’ll wait while you update scroll the to the bottom of this email, click the “update subscription” link, and change your marketing permissions.)

And speaking of HR compliance, don’t do this…

Last night, I read this federal court opinion, address a situation in which the plaintiff alleged that she gave HR notice (before her one-year anniversary with the company) that would need FMLA leave for surgery six days after she would have become eligible.

Under the FMLA, one of the employee eligibility requirements is that the employee must have worked for her employer for at least one year before FMLA leave begins.

So, everything was all good, according to the plaintiff, until HR consulted with an Executive Administrator. The plaintiff claimed that HR then told her that she must begin her leave immediately, even though there was no medical reason requiring her to do so. The complaint further alleges that HR encouraged the plaintiff to move her surgery up and assured her she would receive FMLA leave and her job would be waiting for her.

Except it wasn’t. And, according to the plaintiff, the company fired her instead. So, she sued.

The employer moved to dismiss the complaint arguing that the plaintiff was not FMLA-eligible when she requested leave. But the court wasn’t having any of that:

[The Employer] would be on solid ground as far as the FMLA is concerned if [Plaintiff] had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave. But according to the allegations of the complaint, which remember must be accepted as true at this stage of the proceedings, that is not what happened. According to the amended complaint, [Plaintiff] gave [HR] notice on January 9th of her intent to request FMLA leave after her surgery on January 31st, six days after she would have become eligible. After consulting with [the Executive Administrator], [HR] then told [Plaintiff] she needed to begin her leave immediately, even though there was no medical reason requiring her to do so. The complaint further alleges that [HR] encouraged [Plaintiff] to move her surgery up and assured her she would receive FMLA leave and her job would be waiting for her.

If these allegations turn out to be true, then [the Employer] may be estopped from refusing to grant [Plaintiff] FMLA leave. 

But, the Court wasn’t done yet. It noted an additional issue for the Employer.

Even without invoking the equitable doctrine of estoppel, however, it appears that [Plaintiff’s] FMLA claims survive. As the Eleventh Circuit held in Pereda v. Brookdale Senior Living Communities, Inc., “[w]ithout protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.” “Such a situation,” the court noted, “is contrary to the basic concept of the FMLA.” 

In other words, a company that fires an employee who requests FMLA leave before she is FMLA eligible may end up defending a lawsuit if that FMLA would have commenced once the employee became FMLA-eligible.

Now, let’s change the facts a bit. Suppose, the plaintiff voluntarily moved up her surgery before her 12-month anniversary with the company. Would leave for that surgery have been FMLA-qualifying? No. However, if that same employee had banked PTO to bridge her to her 12-month anniversary, then she would have those FMLA protections.

I guess what I’m trying to say here is, check out that webinar!!!

 

“Doing What’s Right – Not Just What’s Legal”