The 3rd U.S. Circuit Court of Appeals recently rendered a decision explaining when an employee is eligible for leave under the Family and Medical Leave Act, when an FMLA retaliation claim can be brought and when the “association” prong of the Americans with Disabilities Act applies. In Erdman v. Nationwide Insurance Co., the plaintiff was terminated shortly after an application for FMLA leave but before that leave was taken. The plaintiff alleged that the termination was in retaliation for her planned use of FMLA and because she had been using FMLA for taking care of a family member with a disability, according to the opinion.
Under the FMLA, an employee who has worked a minimum of 1,250 hours in the previous 12 months may take an unpaid leave to care for oneself or a member of his or her family. Clarifying how an employee can meet this requirement, the 3rd Circuit explained that the hours that count toward the requisite number of hours are those to which the employer has actual or constructive notice. Thus, if the employer has reason to know that an employee is putting in additional hours at home, those hours shall count toward the required total. The plaintiff in Erdman was able to include the hours that she worked at home toward the 1,250 total — but only up until the date when a supervisor admonished her from doing so. Once the employee has been instructed not to work at home, it is not included in the FMLA count, according to the 3rd Circuit.
