The Family and Medical Leave Act ("FMLA") entitles eligible employees to 12 workweeks of unpaid leave during any 12-month period. To be eligible for leave, an employee must have 1) been employed for at least 12 months by the employer, and 2) worked at least 1,250 hours in the previous 12-month period. In Gleaton v. Monumental Life, a South Carolina federal District Court recently held that even though an employee may not yet be eligible for FMLA leave, she may still be protected if she puts her employer on notice that she intends to take leave at some point in the future after she becomes eligible for leave. 

The FMLA requires employees to provide at least 30 days notice where possible of intent to take leave. Gleaton informed her employer after approximately 11 months of employment that she intended to take short term disability and FMLA leave the following month, after she became eligible for FMLA leave. Gleaton's employment was terminated shortly thereafter, but before she became eligible for the FMLA leave. She alleged, among other claims, that her employment was terminated in retaliation for exercising her rights under FMLA. 

The issue of whether an employee is protected under FMLA pre-eligibility status was a matter of first impression in the Fourth Circuit (which includes North Carolina and South Carolina). Other courts addressing this issue have been divided, some holding that an employee simply has no rights under FMLA unless she is eligible for leave. In allowing Gleason's FMLA claim to proceed, the South Carolina District Court joined a number of federal courts that have held that the right to take leave includes the right to declare an intention to take leave in the future. The court said that it would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave, which would expose them to retaliation, then provide no remedy for such adverse action.

This issue has not yet been addressed by the Fourth Circuit Court of Appeals. The length of time between the employee's eligibility date and the date on which the employee provides notice, and the likelihood that the employee will actually take leave (i.e. scheduling a procedure versus a general statement that the employee may take some leave in the future) could mitigate against a finding of retaliation. However, based on this decision, employers in North Carolina and South Carolina should be mindful of actions that could be considered retaliatory once an employee has declared his or her intent to take FMLA leave. It is legally risky to terminate an ineligible employee based on concerns over granting FMLA leave once she reaches the eligibility threshold.