The Family and Medical Leave Act contains a two-year statute of limitations for claims of interference with or retaliation against protected employee activity. Last month, the Seventh Circuit Court of Appeals faced questions over when this limitations period begins running. The court concluded that the two-year period starts on the last date an employer denied FMLA leave, and not the subsequent date that the employee is terminated for excessive absenteeism.

In Barrett v. Ill. Dep’t of Corrections, the employer maintained a cumulative absenteeism policy that counted days missed over a multi-year period. The plaintiff was fired for exceeding the maximum number of allowed absences, but contended that several of the days missed involved FMLA protected absences for medical conditions that occurred years ago. The Seventh Circuit agreed that the lawsuit was untimely because it was not filed within two years of the last date of alleged wrongful denial of FMLA leave. The court concluded that the “last event” as used in the statute refers to rejection of the FMLA leave request and not the subsequent termination of employment.

Two other federal appellate courts reviewing this question reached opposite conclusions from one another. Unless reversed by Supreme Court action, the Seventh Circuit’s position would appear to require the employee to bring a suit or administrative complaint well before the FMLA denial threatens his or her work status. Regardless, employers faced with FMLA claims should carefully check the action’s timeline to determine whether the claim is timely filed.