Have you been on the job for less than a year, but know you’re going to need FMLA leave as soon as you qualify for it (i.e., once you’ve been employed for a total of at least a year, and worked for a covered employer for at least 1,250 hours in the past twelve months)?
Consider making your request in advance, even if you’re not yet eligible. This will give you a layer of protection in the event an unscrupulous boss decides that firing you is a better alternative than allowing you to qualify for, and then take, months of leave.
It’s a fact of life that some bosses don’t like it when newly-hired employees are going to miss work for extended periods, even when justified. Supervisors who think this way might rather fire a new employee than let him or her take prolonged leave. FMLA leave in particular aggravates some bosses because, the moment you qualify for it, you’re entitled to as much as three months’ leave, all at once. It’s very different from regular sick leave, or paid time off (PTO), which builds up slowly over months or years on the job. And, unlike those regular leave, the FMLA requires your employer to hold your position until you get back.
So if you’re an employee who is seen as likely to need FMLA leave as soon as you’re eligible, you could become a target as the eligibility date approaches. You may find that anything you say suddenly becomes “insubordinate.” Your work might suddenly become “deficient.” And then, by sheer coincidence, you’re let go, just weeks or even days before you would have earned FMLA rights.
Many companies believed that they couldn’t be sued for doing this, because, the thinking went, how can an employee sue for violations of rights they don’t even have yet? I’ve seen this many times. An employee who has been performing flawlessly disclosed an anticipated need for leave and, just before the eligibility date, the employee was fired. (It’s similar to other firing “coincidences,” such as when an employees who’s about to vest for retirement-benefit purposes is terminated days or weeks before permanent vesting would occur.)
Can You Sue For A Right You Don’t Yet Have?
The question for some time has been, can your employer do this? Can it fire you specifically to prevent you from becoming eligible for FMLA leave? If you’re not yet even eligible for FMLA leave, how can you complain about supposedly being cheated of it?
On January 10, 2012, a high-level federal court in Atlanta – whose rulings govern Georgia and Florida – ruled that the FMLA could be rendered meaningless if employers can freely fire an employee its knows is about to become FMLA-eligible and will need it. The court decided that the FMLA protects employees who make a request for future FMLA leave even before being technically eligible. In the case decided by the court, the female employee began working in October 2008. In June 2009, after eight months on the job, she disclosed she was pregnant and would take FMLA leave in November 2009, a month after she reached eligibility. But in September 2009, one month before her entitlement date, she was fired. The evidence showed she was a top employee……until she disclosed she was pregnant. From then on, she was the target of writeups that painted her as incompetent. She was also given a performance improvement plan that set goals she could not possibly meet. It was in this setting that the federal court ruled that the FMLA’s goals can only be achieved if employees have protection against retaliation when they make a pre-eligibility request for post-eligibility leave.
The Lesson
If you’re new, and not yet eligible for FMLA leave, but you know you’re going to need it once you become eligible, make that request now. Do it once the need for future leave becomes obvious. Common situations that might justify a pre-eligibility request include the need for maternity leave after giving birth, or the need for recovery time following surgery, or for future intermittent doctors’ visits where you or a loved one has been diagnosed with a serious health condition that will require ongoing medical treatment. A pre-eligibility request for FMLA leave will create important proof that you disclosed and claimed the need for upcoming legally-protected leave benefits. (Just be sure it’s for an FMLA-eligible event, and that both you and your employer are or will be covered by the FMLA.)
Categories: Family & Medical Leave Act Of 1993, Retaliation
Jim Garrity, Esq. - Employee Rights Lawyer 
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