Pre-Eligibility FMLA Leave Requests May be Protected

In Tennessee and all across the United States employees who have worked at least one thousand two hundred and fifty hours are eligible to take Family Medical Leave. Employees that have not worked these required hours are usually not protected by FMLA but one court ruled recently that pre-eligible employees may be protected under the leave in certain cases.

According to this case, Kathryn Pereda worked at an assisted living facility. After eight months of working on the job, she told her boss that she pregnant and planned to take Family Medical Leave after the child was born five months later. By the time she took the leave, Pereda would be eligible for it. However, Pereda didn’t make it to five months. The company terminated her three months after her FMLA request when she was one month short of the required twelve months for FMLA eligibility.

The company claimed her performance was poor but Pereda claimed that she was a top employee before making her request for the leave. Pereda then claimed that her request was the real reason why she had been fired and filed a lawsuit against the company, claiming retaliation and interference with her right to take leave. The company claimed that the lawsuit should be dismissed because Pereda was not eligible for FMLA at the time that she was fired. The lower court agreed stating that if the law does not cover you, you are not protected.

However, when the case was taken to the appellate court, the ruling was reversed. The court stated that, “simply by requesting FMLA leave for the future, Pereda was “engaged in a protected activity” under the FMLA and the employer could not take adverse action against her.” Ruling otherwise would provide a loophole which would mean that pre-eligible employees requesting future FMLA leave could be fired without remedy.

This decision by the appellate may change the way some FMLA cases are viewed or may even change the outcome of some of these cases for employees all across the United States and even for employees in Tennessee. If you or someone you know has requested FMLA leave and then been terminated because of it, you should speak with one of our caring and knowledgeable Tennessee employment and FMLA attorneys immediately to find out how this decision may affect your case. Contact us online or call us at 800.705.2121 to set up a FREE consultation to discuss your legal options.

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