Skip to Content
Michel | King Michel | King
Free Confidential Case Evaluation 205-265-1880

Family Medical Leave Act: Can an Ineligible Employee be Protected by the FMLA?


FMLA: Introduction

The Family Medical Leave Act (“FMLA”) protects employees who need leave from work for their own medical condition(s), as well as for the care of certain other individuals. Under the FMLA, only eligible employees of a covered employer can take advantage of the Act’s guaranteed twelve weeks of annual leave and its protections against employer interference and/or retaliation.

Covered Employers and Employees

A covered employer is one who employs 50 or more employees within a 75-mile radius. A covered or eligible employee is one who (i) has been employed for twelve or more months, (ii) worked 1,250 hours within the 12-months preceding the start of the requested leave, and (iii) works at a location where the employer employs 50 or more employees within a 75-mile radius. An employee must meet all three of these requirements to be eligible under the FMLA.

Regardless of whether an employee meets the eligibility requirements, if the employer does not meet the 50-employee requirement, the employer is not subject to the FMLA. However, what if your employer is covered and you are currently ineligible under the FMLA, but you have requested FMLA leave for a time when you will be eligible? The answer: you should be protected under the anti-retaliation provision of the FMLA.

What is retaliation?

The FMLA permits two types of claims: interference claims and retaliation claims. Retaliation claims arise when an employer has discriminated against an employee because of engagement in an activity that is protected under the FMLA. Retaliation is established by demonstrating that (i) an employee engaged in an activity protected by the FMLA, (ii) the employer took an adverse employment action, and (iii) the decision to take an adverse employment action was causally connected to protected activity.

Pre-eligibility request for post-eligibility leave.

In 2012, the question before the Eleventh Circuit Court of Appeals in Pereda v. Brookdale Senior Living Communities, Inc. was whether the FMLA protects a pre-eligibility request for posteligibility leave. In this case, Ms. Kathryn Pereda informed her employer, Brookdale Senior Living Communities, that she was pregnant and intended to request FMLA leave when her child was born. After Ms. Pereda informed Brookdale, she went from being the top employee, to being harassed, written up for using accrued sick and personal leave, and having her job performance disparaged. Ms. Pereda was ultimately fired.

At the time Ms. Pereda informed Brookdale that she intended to request FMLA leave, she was not eligible under the FMLA because she could not meet the hours worked requirement. However, at the time Ms. Pereda would actually formally request and use FMLA leave, she would meet the eligibility requirements. Therefore, the court held 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.” Thus, an employee does not have to currently exercise FMLA rights, or even be eligible under the FMLA, to be protected from retaliation but should be protected if, at the time leave would begin, the employee would be eligible.

If you feel your rights under the FMLA have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 3199724. We are here to serve you!

Share To: