In a ruling that broadens employee protections under the Family and Medical Leave Act, a federal appellate court recently held that an employee may advance FMLA interference and retaliation claims even when the employee requested but did not take FMLA leave. Erdman v. Nationwide Insurance Company (pdf).
In Erdman, the plaintiff requested to use vacation time to prepare her daughter with Down Syndrome for the beginning of the school year. Her employer, Nationwide Insurance Company. denied the request. Erdman then requested FMLA leave, submitted paperwork in support of her request, and was advised that there were no anticipated problems with her use of FMLA leave. Approximately one month after she requested leave, but before she took any leave time, Nationwide terminated her employment, citing behavioral problems. Erdman filed suit against Nationwide, alleging that she was fired for requesting FMLA leave. Citing earlier court precedent, Nationwide argued that Erdman could not recover on an FMLA retaliation theory because she did not actually take leave.
The Court rejected this argument, stating that such a result would “perversely allow an employer to limit an FMLA plaintiff’s theories of recovery by preemptively firing her.” As such, the court held that that firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation.
On a separate issue, the court also determined that a jury should decide whether Erdman was “eligible” for FMLA leave. Despite Nationwide’s arguments that she had not worked at least 1,250 hours during the previous 12-month period to be eligible for FMLA leave, the court held that a genuine factual dispute existed as to whether Nationwide was constructively on notice of the hours Erdman worked from home.
Insights for Employers
The Erdman decision highlights a couple of important issues for employers. Notably, it clarifies that an employee need not actually take FMLA leave to advance an actionable FMLA retaliation claim. Moreover, it serves notice to employers to carefully account for hours worked outside the office or the normal workday when determining an employee’s eligibility for FMLA leave.