FMLA Protects the Intention to Take Leave at a Future Date

By: Maria Greco Danaher, Ogletree Deakins (Pittsburgh)

The Family and Medical leave Act allows “eligible” employees to take unpaid leave for reasons articulated in that act, including leave of up to 12 workweeks during a 12-month period for the birth or adoption of a child.  The act defines “eligible employee” as one who has been employed for at least 12 months and who has worked for the employer for at least 1250 hours during the previous 12-month period.  The FMLA specifically makes it unlawful for an employer to “deny the exercise of or the attempt to exercise, any right provided under the FMLA.” 

One federal district court recently addressed the issue of whether an employee is barred from proceeding with an FMLA claim when he had been employed for less than 12 months, but requested FMLA leave that would begin more than a year after his employment had begun.  Reynolds v. Inter-Indus. Conf. on Auto Collision Repair, N.D. Ill., No. 08-2115, Jan. 23, 2009. 

In that case, Christopher Reynolds asked for FMLA leave to care for his newborn son, who was born prematurely and had suffered medical complications.  Reynolds began employment with Inter-Industry Conference on Auto Collision Repair (a/k/a/I-CAR) on August 25, 2005.  His son was born on August 8, 2006.  Reynolds promptly notified his employer of the child’s birth and medical problems, and was granted immediate time off work because of the emergency nature of the situation.  On or about August 16, Reynolds returned to work and notified the company’s HR department that his son would remain hospitalized for three months.  While the child’s mother would be with the baby during those months, Reynolds asked for his own FMLA leave to begin in November when the baby left the hospital, so that he could assist in his family’s care at that time.  At the end of the business day, Reynolds received a phone call from his supervisor and the HR director, terminating his employment for reasons, they said, “related to his skill set.” At the time of his termination, Reynolds had worked for the company for slightly less than one year.

Reynolds then filed a lawsuit alleging, in part, that the company violated the FMLA by firing him immediately after his request for leave.  The company filed a motion to dismiss that claim, arguing that Reynolds was not an “eligible employee” (because he had not worked there for 12 months at the time of his request for leave) and, therefore, could not assert a cause of action under the FMLA. 
 
The district court denied the motion to dismiss, allowing the case to go forward.  It based that decision on the provision of the FMLA which states that an employer is entitled to 30 days of notice in instances where a requested leave is foreseeable.  According to the court, it would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee, based simply on the fact that the employee was just short of becoming “eligible” under the FMLA.  The court’s decision means that under the FMLA, an employer may not terminate an “ineligible” employee for requesting foreseeable future leave for which that employee will be eligible and to which he or she will be entitled at the time the leave is to begin.

While this case is a district court decision, and therefore is appealable, the opinion is instructive and is an indication of the fact that courts are recognizing that one purpose in enacting the FMLA was to “balance the demands of the workplace and the needs of families.”  Employers should understand that in light of this, courts that address this issue in the future are likely to interpret the FMLA consistently with this opinion.