Are employees protected by FMLA even if they have not worked enough hours to be eligible for FMLA? The answer may surprise you.

In a recent court case, Pereda v. Brookdale Senior Living Communities, the district court answered the above question in the negative. It dismissed the case because the employee was not an FMLA-eligible employee when she was terminated and could not complain about retaliation and interference.

The 11^th Circuit Court of Appeals answered the above question in the positive, reversing the district court. Here are the relevant facts. The employee notified her employer she wanted FMLA for birth of a child only eight months after being hired. Of course, FMLA requires an employee to work for at least 12 months in order to be eligible. Before the birth, she took several days off work and alleged that she was authorized to use other types of non-FMLA leave for these absences. Ultimately, the employer terminated her employment.

The appellate court examined whether the employee would have been eligible for FMLA by the time of the childbirth. Her due date was almost 14 months after her hire date. FMLA requires an employee to provide at least 30 days notice for a foreseeable FMLA leave. Therefore, without protecting against pre-eligibility interference or retaliation, ”a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible,” the court reasoned.

This case returns to the district court where the employee will now have her day in court.

Do you believe the court resolved this case correctly? What precautions do you take before terminating someone with some sort of FMLA issue?