To be eligible for FMLA leave an employee must have been employed for a total of at least 12 months and must have worked at least 1,250 hours in the past 12 months. How should an employer respond if an employee who has only been employed for 11 months submits a request for leave beginning on a date after the employee becomes eligible? The employer should treat the request as proper because there is nothing wrong with the employee submitting the request for leave before she becomes eligible; an employee is required to give advance notice of foreseeable leave. Two examples of foreseeable leave requests that could be submitted by the employee well in advance of the date the leave is to begin are leave requests for pregnancy and scheduled surgery. If the employer fires the employee after receiving the request for FMLA leave, and before the employee becomes eligible for FMLA leave, the employee will have a viable claim for FMLA retaliation if the employee is able to show that she was fired by reason of her request for FMLA leave. See Pereda v. Brookdale Senior Living Communities (11th Cir. Jan. 2012).
An employer may choose any one of four methods for determining the 12 month period during which an employee may take up to a total of 12 weeks of job-protected FMLA leave. Two of the options are a calendar-year method and a rolling-year method. An employer can change from one method to another, but the employer must notify its employees of the change. When American Standard changed from the calendar-year method to rolling-year method, this change was not communicated to its employees. Not long after this change, an employee was fired when he failed to return to work after his 12 weeks of job-protected FMLA leave ran out under the rolling-year method. The employee was awarded substantial damages after proving that he had not been given notice of the employer’s change to the rolling-year method, and that when he was fired he still had some of his 12 weeks of job-protected FMLA leave remaining under the calendar-year method. Thom v. American Standard Inc. (6th Cir. Jan. 2012).
Contact Mike H. Loftin at (806) 376-5613 for additional information or assistance.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.