The FMLA Now Protects Employees Who Are Not Eligible

Posted by Edward Sharkey on Mon, 03/19/2012 - 18:31

Under the Family and Medical Leave Act, an eligible employee can take 12 weeks of leave, all at once or in increments, for a variety of medical purposes. These purposes include caring for a relative who has a condition that prevents him from participating in "other daily activities."

It is not a secret that, along with benefits for workers, the regulation creates uncertainty and disruption in workplaces. Even so, employers and employment lawyers could at least count on an eligibility standard that was easy to use. Specifically, the FMLA does not cover an employee unless he has worked for the employer for one year and for 1250 hours in the last 12 months. That was, until just recently.

A U.S. Court of Appeals has now decided that the FMLA protects an ineligible employee who makes a "pre-eligibility" request for maternity leave.

In the case, an employee began working for her company in October 2008. In June 2009, she told her employer she would need leave following the expected birth of her baby in November 2009. After she was fired in September 2009, she filed a lawsuit, claiming the employer did it because she requested FMLA leave.

The trial court dismissed the complaint because, consistent with the language of the Act, the employee was not covered by the FMLA when she requested leave or when she was terminated. The appeals court reversed that decision.

The appellate court ruled that "logic mandates" that the FMLA allow a claim for employees who give notice of their plans to take FMLA in the future, even if they are not eligible.

That sounds logical, but it removes a bright-line rule that helps employers figure out who falls under the FMLA and who does not. It also conflicts with the language of the Act, which Congress passed after lengthy inquiry and debate. There is a reason that employees cannot claim FMLA leave on the first day of work. It could lead to abuses.

As the employer's lawyer pointed out, the court's decision will allow an employee to give notice on her first day of work of her plan to take FMLA leave way in the future, thereby becoming protected under the Act. The court dismissed this concern, saying such an employee could still be terminated for legitimate reasons.

That is a little simplistic. Yes, an employee can still be terminated for legitimate reasons. But as employers know, being right is not a guarantee against being sued. A worker fired for legitimate reasons is more likely to file a lawsuit if she happens to be "protected" under a federal regulation.

Good employers pay money to settle such cases all the time to avoid the cost and distraction of litigation, even though they have done nothing wrong. This ultimately reduces employment and raises costs for everyone.

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