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DTCI: FMLA Update

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gessling By Joshua B. Gessling

Finding that the 7th Circuit Court of Appeals had not previously addressed the issue, the U.S. District Court for the Northern District of Indiana recently held that a pre-eligibility request for post-eligibility leave may be protected under the Family and Medical Leave Act.

In Morkoetter v. Sonoco Products Co., No. 3:11-CV-485 (N.D. Ind. Mar. 29, 2013), the employee alleged that he informed his employer of his disabilities and plans to take time away from work after he became eligible for leave under the FMLA. The employee alleged that after informing his employer of the need for post-eligibility leave, but approximately five weeks before reaching his eligibility date, the employer terminated his employment. The employee claimed the employer fired him because of his pre-eligibility request for post-eligibility leave in violation of the FMLA. The employer moved to dismiss. Because the employee had not worked for the employer for 12 months and, consequently, was not yet eligible for FMLA leave, the employer argued the employee’s termination did not constitute retaliation.

Relying heavily upon the rationale in Pereda v. Brookdale Senior Living Cmty., Inc., 666 F.3d 1269 (11th Cir. 2012), the court denied the employer’s motion to dismiss the FMLA claim and held that termination based upon a pre-eligibility request for post-eligibility leave may constitute a viable retaliation claim under the FMLA. Since the FMLA requires that employees provide employers with notice of foreseeable future leave, the court reasoned that the aims of the FMLA would be compromised if employees were required to provide notice of future leave while remaining exposed to retaliation for complying with the law.

Given this growing trend, employers should be mindful that certain pre-eligibility requests may be protected under the FMLA, reassess internal policies in light of this development, and administer leave requests accordingly.•

Mr. Gessling is an associate at Kahn Dees Donovan & Kahn LLP in Evansville. The opinions expressed in this article are those of the author.
 

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