Eleventh Circuit holds pre-eligible request for post-eligible FMLA leave is protected activity

The Eleventh Circuit Court of Appeals recently held that an employee's pre-eligible request for post-eligible FMLA leave is protected activity under the FMLA.  Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012). Plaintiff Pereda was hired on October 5, 2008.  In June 2009, she advised her employer that she was pregnant and would be taking FMLA leave following the birth of her child around November 30, 2009.  Pereda's lawsuit alleges that following her FMLA request, her managers disciplined her for using accrued sick and personal leave to visit the doctor.  Pereda also alleges that she was disciplined for notifying management of an absence via e-mail rather than seeking verbal authorization.  In September 2009, Pereda's doctor advised her to take a few days of bed rest.  Pereda's lawsuit alleges that she notified the employer of her doctor's order in a message left for the Executive Director prior to taking the time off.  Pereda claims she was not contacted by the employer during her bed rest and was terminated upon returning to work immediately thereafter.  Pereda alleges she used accrued sick and personal leave for the absences.  The district court dismissed Pereda's lawsuit.  It held that the employer could not have interfered with Pereda's FMLA rights because she was not entitled to FMLA leave at the time she requested it.  The district court also held that because Pereda was not eligible for FMLA leave, she could not have engaged in protected activity, and therefore the employer could not have retaliated against her.  The Court of Appeals reversed, because 'allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted.  The Court reasoned that the FMLA's requirement of notice in advance of leave means employees are protected from interference with their FMLA rights prior to the occurrence of the triggering event, such as the birth of a child.  As the statute requires advance notice, logic mandates that [the] 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 employees giving pre-eligible advance notice of a need for FMLA leave are engaging in protected activity, and they are therefore protected from retaliation 'because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in the planning for the absence of employees on FMLA leave.'  The Court emphasized that it was not creating a 'new class of employees,' as argued by the employer.  'We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.' The Eleventh Circuit is not alone in its analysis of this issue.  The Pereda Court cited a similar decision by the Sixth Circuit Court of Appeals, as well as two decisions of federal district courts in the Northern District of Illinois and the Eastern District of Pennsylvania.  Pereda sends a clear message that going forward, employers subject to the FMLA need to carefully scrutinize all employment decisions, including discipline, for potential FMLA liability regardless of an individual employee's eligibility for the same at the time of the employment decision.       Iowa employers should also be aware of Iowa's law prohibiting termination of employment 'because of' an employee's pregnancy.  Iowa law further requires that an employer grant to an employee disabled by pregnancy a leave of absence from work 'if the leave of absence is for the period that the employee is disabled because of the employee's pregnancy, childbirth, or related medical conditions, or for eight weeks, whichever is less.'  Iowa law also prohibits an employer from retaliating against an employee who exercises her right to maternity leave.  Similar to the FMLA, Iowa's law provides that for this protection, the 'employee must provide timely notice of the period of leave requested and the employer must approve any change in the period requested before the change is effective.  An employee, perhaps one not yet pregnant, making inquiry about an employer's policy on 'notice' under this statute would probably be regarded as engaging in protected activity under this provision.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.