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Timing is Everything for FMLA Eligibility



By Sean McLean

Less than one year
After eleven months of employment, an employee of a newspaper notified her employer she required surgery as part of her cancer treatment and would need to take medical leave shortly after her one year anniversary.  Half an hour later, the newspaper fired the employee because it needed someone who could work full-time.  In response to her termination, the employee filed suit against the newspaper alleging a violation of the Family and Medical Leave Act (“FMLA”), among other claims.  The newspaper argued the employee’s claim under the FMLA must be dismissed because she was not an eligible employee as defined by the statute.

Interference claim
The FMLA allows an eligible employee – i.e. one who has been employed for at least twelve months and for at least 1,250 hours of service – with up to twelve weeks of medical-related leave per year.  Employers may not interfere with, restrain, or deny an employee’s attempt to take leave under the FMLA.  Although the newspaper’s employee had not been employed for a full year when she requested medical leave, the court considered whether she was still an eligible employee because she did not intend to take the leave until after her one year anniversary with the newspaper.

The court determined FMLA eligibility was specific to employees who have already been employed for a year or more, and accordingly, the newspaper’s employee was not yet eligible at the time she gave notice and had not qualified for leave under the FMLA.  As such, the newspaper was not prohibited by the FMLA from terminating her employment, despite the fact her leave would not commence until after she became eligible.  In its holding, the court noted it could not alter the statute in order to expand protections to employees Congress intended to omit from protection.  This case serves as a lesson to employers and employees alike that timing really can be everything when it comes to giving an FMLA notice and considering whether to grant an employee’s requested leave.


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