Compliance Corner: Approaching FMLA Eligibility: Are Employees Protected Before They Qualify?

Does the FMLA offer any protection to employees who are not eligible yet – but are close to qualifying? A recent case from Illinois shows why employers should proceed with caution.

In Clevenger v. A.M. Castle & Co. (N.D. Ill.), a credit representative—responsible for collecting on past due accounts— was terminated just weeks before she became eligible for leave under the FMLA. The timing raised serious questions about whether employees approaching FMLA eligibility are entitled to any protections under the law.

After the employee’s husband was diagnosed with terminal cancer, she requested and was approved to work remotely two days a week so she could care for him while he underwent treatment. Following this request, the employee alleged that her supervisor became increasingly abrupt and exhibited hostility toward her over the following months. The supervisor claimed that the remote work arrangement negatively affected customer service and cited customer complaints, though the company couldn’t produce any records to support that claim. The supervisor made multiple attempts to cancel the remote work arrangement and informed HR of the alleged issues. The supervisor even asked whether the employee could be moved into a “pseudo-FMLA” arrangement or take unpaid leave. At the time, the employee did not qualify for FMLA leave because she had not yet reached the one-year service requirement; she was only four months away from becoming eligible.

Soon after, the employee was placed on a Performance Improvement Plan (PIP), which she alleged was pretextual and intended to set her up for termination. The company ultimately terminated her employment just weeks before she would have become eligible for FMLA leave. The employee filed suit alleging disability discrimination under the ADA, as well as interference and retaliation under the FMLA. She specifically claimed that the employer sought to prevent her from ever becoming eligible for FMLA leave by terminating her before she reached the required tenure—a legal concept known as pre-eligibility interference. Upon review, the court sided with the employee on her ADA claims, allowing those to move forward, but dismissed her FMLA claims, stating the employee had not clearly communicated her intent to take FMLA leave.

This case is a helpful reminder that while FMLA protections don’t technically begin until an employee meets the eligibility requirements, some courts have found that employers may not take adverse action to deliberately prevent an employee from qualifying. The court in Clevenger found that pre-eligibility interference did not apply here because the employee hadn’t clearly communicated her intent to take FMLA leave. Even so, the decision underscores that employer actions taken close to FMLA eligibility can still raise legal concerns. If you have questions about how to navigate these situations or need help managing FMLA compliance, feel free to reach out to us! We are here to help!