Even Though Not Yet Eligible for FMLA Leave, Employee Is Protected

In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492, (11th Cir. Jan. 10, 2012), the Court was confronted with the question left open by Walker v. Elmore Cnty., Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004), that is whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave.  The 11th Circuit, Judge Fay writing for the panel, held that the pregnant employee in such circumstances pled both a FMLA interference and a FMLA retaliation claim.  

First, with respect to Pereda’s FMLA interference claim, the Court held that “because the statute contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as Pereda, who put their employers on notice of a post-eligibility leave request.”  Pereda, 2012 U.S. App. LEXIS 492 at *14.  Further, the Court stated: “an expectant mother who is along in her pregnancy cannot hide that, in due time, she will give birth to a child.  By the very nature of the fact that a full-term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by the employer.”  Id. at *14-*15.  The Court thus concluded 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.  

Finally, with respect to Pereda’s FMLA retaliation claim, the Court held that she could also state a cause of action for FMLA retaliation, holding “that a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”  See also Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) ("The right to actually take [FMLA] leave . . . includes the right to declare an intention to take such leave in the future."); Beffert v. Penn. Dept. of Public Welfare, 2005 U.S. Dist. LEXIS 6681 (E.D. Pa. April 18, 2005) (holding a pregnant employee who provided notice of post-eligible FMLA leave could bring a retaliation claim even though she was not eligible at the time of her request); Reynolds v. Inter-Indust. Conf. on Auto Collision Repair, 594 F. Supp. 2d 925, 928 (finding an employer "has no legitimate interest in being able to terminate an eleventh month-employee for simply requesting foreseeable leave for which he is eligible" especially when the same decision would be prohibited a month later); Walker v. Elmore Cnty. Bd. of Educ., 223 F. Supp. 2d 1255, 1260 (finding it "absurd" to interpret the FMLA to allow a employer to retaliate against an employee who gives pre-eligible notice of post-eligible leave).  The Court concluded by stating: “Our decision today simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA.”

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