Third Circuit Broadens FMLA Protections For Employees

In a September 23, 2009 ruling that enhances the reach of the Family and Medical Leave Act (“FMLA”), the United States Court of Appeals for the Third Circuit held that employees who claim they were discharged for merely asking permission to take a leave of absence may invoke the FMLA's retaliation provisions, irrespective of whether the employees actually took FMLA leave.  Erdman v. Nationwide Insurance Co., No. 07-3796 (3d Cir. Sept. 23, 2009).

In Erdman, the Plaintiff requested FMLA leave on April 14, 2003.  Although a human resources employee responded by stating “as far as the FMLA, I probably don’t see any problems with this,” the employer later discharged the Plaintiff on May 9, 2003, citing her alleged behavioral problems.  The Defendant also believed that the Plaintiff was not eligible for FMLA leave because she had not worked the requisite 1,250 hours during the previous 12-month period.  The Plaintiff filed suit under the FMLA, alleging that she was fired for requesting a leave of absence.

The Defendant argued that the Third Circuit already had decided this issue in Conoshenti v. Public Service Electric & Gas Company, in which it held that an employee must have taken FMLA leave to assert a retaliation claim.  The Defendant also argued that the regulations explaining the FMLA retaliation provisions protected only "employees who have used FMLA leave."  Consequently, the Defendant argued that an employee could not establish a retaliation claim unless she actually commenced a leave of absence.

The Circuit rejected the Defendant’s argument and wrote that "[i]t would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins."  Citing case law from the lower courts, the Court opined that "the critical issue is invocation of FMLA rights," and stated, "[s]imply put, this court has never held that an employee fired after requesting FMLA leave but before the leave begins, cannot recover for retaliation, and [the Defendant] cites none of our precedents other than Conoshenti to support this proposition." The Court concluded by holding that "[r]eading Conoshenti as [the Defendant] urges would perversely allow an employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her.  Accordingly, we interpret the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.”

Practice Pointer: Employers and human resources professionals should be wary of discharging an employee immediately after receiving a request for a family or medical leave of absence.  Employers should avoid a rigid, mechanical approach to such requests, and should take the same cautious approach before taking adverse actions or terminating employees who requested, but are not qualified or eligible for FMLA, as they would with an employee who took an approved leave.  If denying a request for family or medical leave, employers should issue a timely, written response to the employee in which the reasons for the denial are stated with specificity. Employers then should evaluate separately whether to proceed with the adverse employment action based on documented events that are independent of, and preferably prior to, the leave request.

For additional information on this topic, please contact Douglas S. Zucker at or Kathryn V. Hatfield at