FMLA FAQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

Franczek P.C.
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Q: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A. It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida. In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009. However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation).

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