FMLA protections without being eligible for FMLA leave


Simply asking for leave provides some rights

Gertrude had worked for the company for three years when the COVID-19 virus came around in March 2020. She was exposed to the virus and became infected in mid-May. Her battle with the virus was a tough one, resulting in her need for time off.

In March 2020, the Families First Coronavirus Response Act (FFCRA) was passed, entitling employees to emergency paid sick leave, and/or expanded family and medical leave for specific reasons related to COVID-19. Only the expanded family and medical leave provisions amended the FMLA by providing leave for employees unable to work because they need to care for a child whose school or daycare was closed, or childcare provider was unavailable for reasons related to COVID-19.

Not being familiar with the laws, Gertrude requested paid leave under the FMLA but, since she had no children, she was not actually entitled to the paid leave. In light of this, her employer terminated her soon after she began leave. Gertrude sued, arguing that she was fired in retaliation for invoking her FMLA rights by requesting paid leave.

The employer argued that Gertrude was not entitled to FFCRA or FMLA leave, so she had no claim.

The court pointed out that, under the FMLA, former employees may bring retaliation claims of against their previous employers because they were fired for invoking their FMLA rights.

Even though Gertrude was not actually covered by the FFCRA’s expanded family and medical leave provisions, the court held that by asking for leave through FMLA (via the FFCRA), even if she mistakenly believed she was entitled to it, meant she had some FMLA rights. Simply asking for the leave was enough to give her some protections.

Given the timing of Gertrude’s leave request and her termination, the court saw a temporal connection between invoking her FMLA rights and being fired, since they both happened in the same month.

Therefore, the court held that, even though she was not actually eligible for FMLA, Gertrude was entitled to sue her former employer for retaliation based on being fired for requesting FMLA paid sick leave.

Bottom line: This concept holds true for FMLA leave outside the construct of the FFCRA. Employees don’t have to actually qualify for FMLA leave to have some FMLA retaliation protections. Employees may not know whether they are eligible. Employers, however, should. The FMLA prohibits employers from taking a negative employment action because an employee tried to exercise the leave rights. Gertrude mistakenly asked for paid leave under FMLA. She was fired soon thereafter.

Key to remember: Employees may request leave they may not be entitled to and employers need to know how to respond

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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