Although it is not directly applicable to Minnesota employers, an appellate court in Florida recently held that the Family and Medical Leave Act protects a pregnant worker who was fired after she requested leave, even though she was not eligible for FMLA leave when she made the request, because she would have been eligible at the time the leave was to have been taken.

Ms. Pereda began working for Brookdale Senior Living Facilities in October 2008. In June of 2009, before she had met the 12-month eligibility requirement for the FMLA, Ms. Pereda told her employer that she was pregnant, and due to give birth at the end of November. According to Ms. Pereda, after she disclosed her pregnancy and her future need for leave, she was subjected to harassment and retaliation when she used accrued sick and vacation days to deal with pregnancy-related complications. Ultimately, in September 2009 she was fired, after eleven months of employment and more than two months before her leave was scheduled to begin. She sued for interference and retaliation under the FMLA, claiming that Brookdale denied her rights under the FMLA to which she was entitled and terminated her for attempting to exercise those rights.

The appellate court held that if employees are not protected against pre-eligibility interference with their rights under the FMLA, it would create a loophole and allow employers the freedom to terminate an employee before she can ever become eligible for leave. Because the FMLA requires thirty days’ advance notice of intent to take leave whenever possible, the Court continued, logic mandates that the FMLA must protect employees who, like Ms. Pereda, meet or exceed the notice requirement. Accordingly, the Court held that a pre-eligible request for post-eligible leave is protected activity under the FMLA.

This decision is a good reminder that employers should take care before terminating an employee who has discussed or requested FMLA leave, even if that the employee is not yet eligible for leave.