[author: Sharon Mollman Elliott]

An employee who has worked for you for less than a year mentions that he will be undergoing surgery that will require him to miss three months of work. You do not want to deal with the havoc that a three-month absence will wreak on your schedule; can you fire him? He is not disabled and the surgery is not for a work-related injury. And since he has not yet worked a full year, he is not eligible for leave under FMLA. So no problem, right? Not so fast. You need to know when he will be taking that absence. “The determination of whether an employee has worked for the employer for … a total of at least 12 months must be made as of the date the FMLA leave is to start.” If the surgery is scheduled to take place before the employee has completed a year of service, he is not eligible for FMLA leave and not protected from termination. On the other hand, if he has scheduled his surgery for after his one-year anniversary with the company, then he will be eligible for FMLA leave at the time his expected absence begins — and the FMLA applies. If you fire him now to avoid the drain on resources that his absence will cause, you could be liable for interfering with his right to FMLA leave and for retaliating against him for giving you notice of his upcoming need for leave.

That is what the courts say. They reason that since the FMLA requires an employee to give advance notice of an expected absence, the employee should be protected from interference and retaliation if he gives that notice — even if he gives more notice than the 30 days required by the statute. Without that protection, “the advanced notice requirement becomes a trap for newer employees,” which would defy the purpose of the FMLA. So before you pull the trigger, make sure that the employee would not be eligible for FMLA on the day the absence is expected to begin.