Employer Lawfully Fires Soon-to-be-Covered Employee Who Gives Notice of Need for Upcoming FMLA Leave

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Timing is everything.  If an employee has not yet been employed for the 12 months required by law in order to be eligible for Family & Medical Leave Act leave, is the employee protected from discharge for expressing her intention to take such a leave as soon as she becomes qualified?  A district court rules no, there is no protection.* In Dunn, an employee known to have cancer informed her boss, the company's Chief Financial Officer, that she would need to take FMLA leave in 30 days, immediately upon reaching her one-year work anniversary, at which point she would qualify for an FMLA leave.  Only one-half hour later, her boss fired her, informing her that he expected to be promoted in the near future and would need an assistant who could work on a full-time basis.  By saying this, the boss explicitly admitted that she was being fired because of her need to take FMLA leave and her anticipated absences associated with such a leave.

Nevertheless, the Court ruled that the employee, by law, was not yet protected by the FMLA, and therefore, dismissed her retaliation and interference claims under the FMLA.  Her disability discrimination claims pleaded under the Americans with Disabilities Act and the Tennessee state discrimination law were not dismissed from the case.

* Dunn v. Chattanooga Publishing, No. 1:12-CV-252.  (E.D. Tenn. Jan. 14, 2013).