Protecting an Employee’s Pre-Eligibility FMLA Request: What You Need to Do

By Eric B. Meyer

Back in 2005, a Pennsylvania federal court recognized in this opinion that an employee’s FMLA rights become sacrosanct upon requesting FMLA — even if the employee is not yet FMLA-eligible — provided that the employee has satisfied all FMLA service requirements when the FMLA begins.

Where would this most likely arise? Why with pregnancy, of course. Something like:

  • Female employee starts work;
  • A few months later, she gets pregnant and requests FMLA to comment upon childbirth; and
  • She gets fired before giving birth.

What to do if you get an FMLA request

Hey, those sound like the facts of Pereda v. Brookdale Senior Living Communities, Inc., a case decided in the 11th Circuit Court of Appeals last week.

Relying upon the 2005 Pennsylvania decision, the Pareda 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.”

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So, employers, here’s what you need to remember when you receive an FMLA request from an employee:

  1. Don’t automatically disregard an FMLA request from an employee who has not satisfied all service requirements at the time of the request. (Rather, determine whether the employee may be eligible for FMLA at the time leave commences).
  2. The scope of the Pareda decision goes beyond pregnancy. The Pareda Court emphasized that advance notice is a basic FMLA concept. Therefore, it is broad enough to encompass any request for foreseeable FMLA leave.
  3. The employee does not get a free pass in between. (If the employees breaks work rules between FMLA request and FMLA commencement, crack the whip as needed).
  4. An employee has no legal right to commence FMLA leave early. (Although you may bend the rules).
  5. Be sure to check state rules on employee leave. (Eligibility requirements may be more employee-friendly than the federal rules).

Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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