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FMLA requests made before employee is eligible may still be protected

The Family and Medical Leave Act can be difficult for any Wisconsin worker to understand. In fact, it can be hard for employers to understand, too. It's okay if employers get confused, but it is not okay if they blunder forward without making sure they are giving employees the consideration and respect they must have.

That may have been the case in a recent lawsuit. Recently, a woman told her boss that she was going to take time off under FMLA after her baby was born, which was five months in the future. At the time she gave her boss notice, she had not worked long enough to qualify for FMLA leave (1,250 hours in the past 12 months), but by the time her baby was to be born, she would be eligible.

The woman was fired three months later. Her boss said it was because she had not been doing well on the job, but the woman contended it was because of her FMLA request.

The first court to hear the woman's case said she was not protected under FMLA because she was not yet eligible. But the woman appealed and the second court agreed with her, saying that an FMLA request is a "protected activity," even if the employee is not yet eligible.

Although this case is new enough that its ultimate effect on other FMLA cases cannot yet be determined, it does seem to indicate that employees have more protection under FMLA than previously thought. It also served as a warning to employers that they should not be overly aggressive in looking for faults in an employee after that employee makes an FMLA request because that looks like the employer is looking for a reason to fire the employee.

If you are considering making an FMLA request and you are met with resistance, it may not be a bad idea to discuss the whole matter with an attorney who helps employees make sure they are afforded all the rights they are entitled to.

Source: Business Management Daily, "FMLA: Pre-Eligibility Leave Requests May Be Protected," Mindy Chapman, Jan. 20, 2012

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