By: Clark E. Smith
We all know that the FMLA’s protections kick in once an employee has been employed for 12 months. But can those protections be triggered even before a full year’s employment? One federal district court recently held that they can be. Here’s why employers should take note.
The FMLA ensures that eligible employees have up to 12 weeks of protected leave per year to cope with a “serious health condition” that renders employees unable to perform job functions. This leave can come in the form of a reduced work schedule—in other words, an employee can be provided a reduced leave schedule when a medical need can best be accommodated that way. And the FMLA further prohibits employers from interfering with an employee’s protected right to take a reduced leave schedule, or for retaliating against the employee for doing so. But the key caveat to these protections is that the employee must be FMLA-eligible. To establish a claim, an FMLA plaintiff must first establish eligibility by showing that she would have been employed for at least a year when the FMLA leave was scheduled to begin.
Against this backdrop, consider the case of Ena Wages. Ms. Wages worked as a property caretaker for Stuart Management Company at one of its apartment complexes. She started working at Stuart on November 17, 2008. On November 16, 2009, Stuart terminated her employment. The importance of these dates becomes obvious when we learn that Stuart terminated Wages because she requested a reduced work schedule, per doctor’s orders. Ms. Wages was encountering difficulties with a pregnancy. Stuart initially accommodated her requests to forego certain activities—vacuuming, mopping, shoveling snow. But management balked when her doctor ordered that she could not work more than 20 hours per week. Instead of allowing her to continue with a reduced work schedule, management terminated her employment one day before her one-year anniversary with the company.
Wages brought suit against Stuart for a host of claims, including FMLA interference and retaliation. Stuart asserted the logical defense that Wages was not eligible for the FMLA’s protections because she had not been employed for an entire year when it terminated her employment. The district judge was not convinced though—because a court can considers a plaintiff’s FMLA eligibility as of the date that the leave is scheduled to start. And although in Wages’ case, her leave would have begun one day before her year anniversary, the court noted that federal regulations provide that an employee may use non-FMLA leave to “bridge the gap” until her eligibility date comes due. In other words, the court admonished Stuart for not letting Wages use PTO or vacation time to cover her reduced work schedule until she became FMLA-eligible on November 17th. “The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so.”
These facts were enough for the court to summarily rule in favor of Ms. Wages on both her FMLA interference and retaliation claims. In fact, the evidence was so strong that the judge ruled on the retaliation claim sua sponte, without Wages even asking for relief! While this result may not have played out in every court, the facts of Wages’ case are enough to give any employer pause. And more broadly, the case reminds us that employers need to keep their human resources professionals fresh and up-to-date on FMLA and pregnancy leave laws. (Such as those that we recently blogged about.) As always, a little bit of common sense can go a long way—should you fire a pregnant woman one day before she becomes technically FMLA-eligible? This court said no, and held that the FMLA has a longer reach than we might have thought.
If you have questions regarding this topic, please contact the author, a member of Seyfarth’s leave accommodation team, or your Seyfarth attorney.