Even though employees are not eligible to take an unpaid leave under the Family and Medical Leave Act (FMLA) until they have worked for a company for a full year, their protection against retaliation starts as soon as they inform their employer that they will be taking leave, the 11th Circuit ruled in January.
The plaintiff in Pereda v. Brookdale Senior Living Communities, Inc., Kathryn Pereda, started working at Brookdale Senior Living Services in October 2008. In June 2009 she informed her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about Nov. 30, 2009. In her lawsuit, Pereda alleged that shortly after she told her supervisors about her upcoming leave, they began writing her up for taking time off for doctor appointments and harassing her, which caused stress and complications in her pregnancy. After she had worked 11 months, Brookdale fired her. Pereda claimed interference because Brookdale denied her FMLA leave and retaliation because the employer terminated her for exercising her right to take the leave.
Based on the holding, “when assessing an employee’s FMLA eligibility, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin,” says Franczek Radelet Partner Jeff Nowak.