FMLA Preemptive Strike, Quirky Question # 83

Quirky Question # 83:

We have an employee who has only been with our firm for about 11 months.  He recently requested FMLA leave.  Although we generally like the guy and think he does good work, we have had problems in the past once employees start exercising their rights under the FMLA.  Frankly, they just are not as dependable.  Especially in the current economy, where all of our employees need to pull their weight, an unreliable employee presents a serious problem.

We checked into the employee’s status.  Given that he has not been with us for one year, we were pleased to discover that he is not eligible for FMLA coverage.  Therefore, we plan to fire him before he becomes eligible and passes that 12-month threshold.  This may seem a bit cold but with the unemployment rate rising quickly, it’s an employer’s market with respect to hiring.  We’re confident we can find a comparably qualified employee reasonably quickly.  Any reason not to proceed as I just outlined?

Dorsey’s Analysis:

Your question is very timely, as this issue has recently received attention from a number of courts. Moreover, these decisions demonstrate that your plan to terminate your employee just before he qualifies for the benefits of the Family and Medical Leave Act (FMLA) is ill advised.

As you know, the FMLA provides eligible employees with the right to take 12 weeks of unpaid leave under certain circumstances. The principal eligibility requirements are that the employee has worked 1250 hours during the preceding 12-month period and has been employed with your firm for at least 12 months. (I previously have written about the fact that the 12 months of employment do not have to be consecutive, and, indeed, can be separated by multi-year gaps. For those earlier analyses, go to the “View By Topic” bar to the left and click on ‘Family and Medical Leave Act.’ That will enable you to access the earlier analyses.)

With respect to your inquiry, I will assume that the employee in question has worked more than 1250 hours during the 11 months he has been employed with your company. (Forty hours per week times 48 weeks would put him well above the 1250 minimum.) I also will assume that this employee had never worked with your company previously, so he had no prior period of employment to combine with the 11 months he has just worked. Consequently, as you have concluded, it would appear that your employee is one month shy of FMLA eligibility.

This leads me to a question not revealed by your inquiry. Is the employee seeking FMLA leave immediately? Your question states, “He recently requested FMLA leave.” If you are suggesting that he sought FMLA leave, to start right away, your conclusion would be correct – the employee would not eligible for FMLA leave. Moreover, in this context, it would be difficult for the employee to make an argument that he was retaliated against for asserting a right for which he was otherwise not eligible.

If, however, your employee was complying with the notification requirements imposed on employees (“the employee shall provide the employer with not less than 30 days’ notice, before the date of the leave is to begin, of the employee’s intention to take leave . . .”, 29 U.S.C. § 2612(e)(1)), a different outcome is likely. In this context, the employee is fulfilling his statutory obligation to his employer by providing the notice required by the statute. Moreover, at the time the leave would commence, he will have worked for your firm for more than 12 months, making him FMLA eligible. When this factual context has been examined by the courts, the employee has been found to qualify for FMLA leave.

For example, in the recent case of Reynolds vs. Inter-Industry Conference on Auto Collision Repair (a/k/a I-CAR), No. 08-CV 2115 (N.D. Ill. January 22, 2009), the employee, Reynolds, had worked for his employer just nine days shy of one full year. Due to serious health problems of Reynolds’ finance and their unborn child, Reynolds requested and was given eight days off. Reynolds’ son was born prematurely and the doctors advised Reynolds and his finance that the child would need to remain in neonatal intensive care for three months. Consequently, Reynolds requested FMLA leave to take care of his son after he came out of intensive care, at which he would have been employed with I-CAR for approximately 15 months.

I-CAR responded by terminating Reynolds’ employment in the nine-day window before he reached his first anniversary date. Reynolds sued I-CAR for violating the FMLA and other claims. In response, I-CAR moved to dismiss Reynolds’ FMLA claim in a Rule 12(b)(6) Motion, arguing that because he had not worked for the company one full year, his FMLA claim should be dismissed.

The federal court rejected the employer’s effort to dismiss Reynolds’ FMLA claim. The court’s analysis started with the FMLA’s statutory purpose – to provide eligible employees with 12 weeks of leave in connection with the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of a serious health condition that makes the employee unable to perform the functions of the employee’s position. Clearly, Reynolds’ request for time off to care for his newborn fell squarely within the defined purposes of the statute.

Next, the court looked at the notification obligations that are imposed on the employee. Since employees are, in most circumstances, expected to notify their employers 30 days in advance of the desired leave, the court found that “it would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.”

The federal court also found support for its analysis in the Department of Labor regulations. As provided in the pertinent regulations, “[t]he determination of whether an employee has worked for the employer for at least 1250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d) (emphasis in original).

Lastly, the court looked at the public policies underlying the FMLA, the balancing of the demands of the workplace with the needs of the families and the effort to provide employees the opportunity to take reasonable leave for medical reasons. As the court stressed, “An employer has no legitimate interest in being able to terminate an eleventh month employee for simply requesting foreseeable leave for which he is eligible, when that employer would be clearly prohibited from making that same decision a month later – or, in Plaintiff’s case, a mere nine days later. If the protections of the FMLA are to serve the Act’s purpose, they must be read to cover scenarios such as Plaintiff’s.”

Apparently sensitive to potential criticisms of its analysis, the court concluded, “[t]he Court’s decision today simply means that under the FMLA, an employer may not terminate an employee who has worked less than twelve months for requesting foreseeable future leave that the employee will be eligible for and entitled to at the time the leave is to begin.”  The court also cited to a number of decisions from other federal courts that had reached the same conclusion.

In sum, your tentative plan to make a preemptive decision to terminate your employee of 11 months because he has requested FMLA leave could lead to litigation that will be difficult for your company to win. If your employee would otherwise be eligible for the FMLA leave at the time such leave would begin, your employee likely would be covered by the FMLA.

The Reynolds decision does not address the more problematic scenarios that seemingly would be encompassed by the logic of the court’s analysis. For example, what if, instead of 9 days before Reynolds reached his first year employment anniversary, he announced his need for FMLA leave 9 months before the end of his first year of employment. Would that advance “notification” preclude adverse action by the employer based on the employee’s desire for FMLA leave? Would the same analysis apply to the 1250 hours requirement (i.e., an employee requests FMLA leave at a point when he only has had 1000 hours)? It will take some time before these other issues reach, and are resolved by, the courts.

Finally, as I’ve expressed in other Blog analyses, there are legal issues for you to consider and there are other, practical, employee relations issues for you to consider. I’m not sure I buy two of the premises of your question. First, you state that the employee who has requested the leave is someone liked by your Company who does quality work. Nevertheless, you suggest that you are willing to jetison him because you believe he could be replaced relatively easily. I’m not convinced. If you have an employee who is exceeding your performance expectations, are you really ready to end the employment relationship with him? Keep in mind that this is an employee who presumably understands your company, understands his job responsibilities and gets along well with his co-workers. Any new employee will have to be trained (at some cost to your firm), plus you have no guarantee that this individual will perform as satisfactorily as the employee you are planning to fire.

Second, you suggest that employees who request FMLA leave are not as “dependable” as other employees. Again, I’m not convinced. Moreover, I think you are underestimating the loyalty you can inspire by supporting your employees’ requests for leave. This is true not only for the specific recipient of the accommodated schedule but for other employees who will observe how this employee is being treated. Consider the converse as well – how would your other employees feel if you terminated a well liked colleague simply because he requested FMLA leave for which he was not quite eligible? I doubt this approach will endear your Company to your workforce.  In my view, both for legal and practical reasons, you should provide your employee the leave he is seeking.

Dorsey & Whitney

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