Even though employees are not eligible to take an unpaid leave under the Family and Medical Leave Act (FMLA) until they have worked for a company for a full year, their protection against retaliation starts as soon as they inform their employer that they will be taking leave, the 11th Circuit ruled in January.

The plaintiff in Pereda v. Brookdale Senior Living Communities, Inc., Kathryn Pereda, started working at Brookdale Senior Living Services in October 2008. In June 2009 she informed her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about Nov. 30, 2009. In her lawsuit, Pereda alleged that shortly after she told her supervisors about her upcoming leave, they began writing her up for taking time off for doctor appointments and harassing her, which caused stress and complications in her pregnancy. After she had worked 11 months, Brookdale fired her. Pereda claimed interference because Brookdale denied her FMLA leave and retaliation because the employer terminated her for exercising her right to take the leave.

The FMLA allows an employee who has worked for at least 1,250 hours during a 12-month period to take 12 weeks of unpaid leave following a triggering event, such as the birth of a child. The district court dismissed Pereda’s complaint, reasoning that Brookdale could not have interfered with Pereda’s FMLA rights because she was not entitled to FMLA leave at the time that she requested it. It also held that because Pereda was not yet eligible for FMLA leave, she was not protected from retaliation.

On Jan. 10, the 11th Circuit reversed the district court’s ruling on both the interference and retaliation claims and remanded the case.

Brookdale argued that a ruling in favor of the plaintiff could lead to a slippery slope where an employee might announce on the first day of work his or her anticipated need for FMLA leave 364 days later and be protected.

But the 11th Circuit cited a FMLA regulation that states that the determination of eligibility “must be made as of the date the FMLA leave is to start.” The court noted that because the FMLA requires advance notice of the intent to take a leave, employees are protected from interference prior to the occurrence of a triggering event. Otherwise, “a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible,” the court wrote.

In returning the case to the district court to determine whether the facts substantiate the retaliation claim, the 11th Circuit also reiterated the well-settled principle that employees, regardless of their FMLA status, may be terminated for legitimate reasons “such as poor performance or dishonesty.”

Assessing Eligibility

Based on the holding, “when assessing an employee’s FMLA eligibility, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin,” says Franczek Radelet Partner Jeff Nowak.

Nowak adds that Pereda’s claim to have been disciplined for attending prenatal appointments, if proven, is a clear FMLA violation. Pereda also claims she was harassed and placed on a performance improvement plan within a very short time after requesting leave.

“If these indeed came as a result of the leave request, it could prove fatal to the employer at trial,” Nowak says. “The lesson of Pereda is to avoid treating your employee differently after a leave request has been made. More than ever before, courts are allowing retaliation to proceed to a jury because employees are providing enough evidence to establish that they were subjected to an adverse employment action simply because they requested or took FMLA leave.”

While pregnancy is one clear scenario in which an employee might request leave before she is eligible, Jackson Lewis Partner Emily Borna says many medical conditions may create circumstances similar to those in Pereda.

“Any type of medical condition where an employee plans treatment in advance could raise the same issue, such as an anticipated kidney transplant or other planned surgery or a long-term chronic condition, such as epilepsy or lupus, that would extend past an employee’s one-year anniversary date,” she says.

Protecting Pregnancy

As a result, experts recommend that employers take a close look at all FMLA requests accompanied by valid medical certification on their merits. Crowell & Moring Counsel Christopher Calsyn advises in-house counsel to work with human resources and benefits coordinators to make sure they don’t reject out-of-hand requests for leave.

“The FMLA is a hyper-technical statute. Even seasoned lawyers don’t know every nook and cranny,” Calsyn says.

Borna emphasizes in-house counsel’s role in providing guidance on drafting policies and communicating with employees and their health care providers while preserving management rights.

Nowak recommends employers review and update their FMLA policies and forms to ensure they are enforcing their own rights under the FMLA, such as using the medical certification process to their advantage and enforcing call-in policies. If an employee breaks work rules after making a request for FMLA leave, discipline is still in order, he says.