Can you terminate a pre-FMLA eligible employee after being advised of the employee’s need for post-eligible leave?


Debra, an employee in your organization, was recently diagnosed with cancer. Thirty minutes after she notified her supervisor that she was scheduled for surgery in a month and would need to take medical leave at that time, she was terminated. Although Debra was not eligible for leave under the Family and Medical Leave Act (FMLA) when she informed her supervisor of her need for time off, she would have become eligible just before the surgery. She is now suing your organization asserting claims under the FMLA. Will she be successful?


It may depend on where she lives. In a case with similar facts, a federal court in Tennessee ruled that because the employee was not an “eligible employee” under the FMLA at the time of her discharge, she could not proceed to trial on her claims under the Act. The court reaffirmed its prior rulings in which it found that a pre-eligible employee may not make a valid claim under the FMLA based on planned post-eligible leave. Noting that these rulings were based on binding Sixth Circuit decisions, the court observed that this interpretation of the Act leaves a small class of employees without the FMLA’s protection. It emphasized, however, that Congress intended to omit certain employees from protection, including employees who have been employed for less than one year.

In so holding, the court rejected a conflicting decision from the Eleventh Circuit, which held that a pre-eligible employee who notified her employer of expected post-eligible medical leave was entitled to FMLA protection. In that case, the appeals court in Atlanta noted that the FMLA requires an employee seeking FMLA leave after the birth of a child, or for foster care, to first provide her employer 30-days’ notice of the foreseeable leave. The Eleventh Circuit concluded that applying the notice requirement while simultaneously withholding protection to pre-eligible employees seeking post-eligible leave creates a hole of protection incompatible with the purposes of the Act.

Source: Dunn v. Chattanooga Publishing Co. (EDTenn 2013) No. 1:12-CV-252; Pereda v. Brookdale Senior Living Communities, Inc. (11thCir 2012) No. 14723.

[ Return to top of document ]