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On January 10, 2012, the Eleventh Circuit held that the Family Medical Leave Act of 1993 ("FMLA") protects a pre-eligibility request for post-eligibility leave. The court reasoned the FMLA's advance notice requirement, 29 U.S.C. § 2612(e)(1), could not logically expose employees "to retaliation, or interference, for which they have no remedy."

In Pereda v. Brookdale Senior Living Communities, Inc., 2012 WL 43271 (11th Cir. 2012), after eight months of employment, the employee informed the Company that she was pregnant and would need FMLA leave for the birth of her child commencing several months later. According to the employee, shortly after making this request, the Company began harassing her and placed her on a performance plan with unattainable goals. The Company eventually fired the employee in September 2009, before she became eligible for FMLA leave.

The employee filed suit alleging interference and retaliation claims under the FMLA. The district court ruled in favor of the Company, holding that, because the employee had not yet satisfied the requirements for FMLA leave ¬– she had not yet been employed for 12 months, she had not yet worked 1,250 hours during a 12-month period, and she had not yet delivered her baby – the employee could not assert a claim under that statute. The Eleventh Circuit reversed the district court.

With respect to the claim for unlawful interference with her rights under the FMLA, the court held 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." The court reasoned that, "because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child." The court added that, "without remedy, the advanced notice requirement becomes a trap for newer employees and extends to employers a significant exemption from liability."

With respect to the claim for retaliation, 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."

One of the first steps in analyzing an employee's FMLA entitlements is to determine if the employee is FMLA-eligible. Often, if there is no eligibility, that is the end of the analysis for employers; however, Pereda demonstrates that it may not be that simple.

Under Pereda, if an employee makes a pre-eligibility request for post-eligibility leave, the request should be treated as protected activity under the FMLA, meaning that adverse actions following shortly after such a request may lead to FMLA interference and retaliation claims.

While Pereda is a case of first impression and has not yet been adopted by any other courts, employers should be cautious when dealing with employees who, while not yet eligible for FMLA leave, have submitted requests for post-eligibility leave.