Maryland Employment Attorneys – Luchansky Law

As most of us know, the FMLA provides an employee with 12 weeks of leave during any 12 month period in which a “serious health condition” prevents the employee from performing the functions of his or her position.  However, there are eligibility requirements which an employee must satisfy in order to qualify for FMLA leave, one of which is that the employee must have worked for that employer for at least 12 months.  (Are you noticing a theme with the number 12?)

Imagine a scenario where an employee began working for an employer on November 17, 2012.  Then on November 13, 2013 — 361-days later and a mere 4-days shy of the one-year anniversary for becoming FMLA eligible — the employee puts in a request for FMLA leave to begin on November 17, 2013 (i.e., the first day on which the employee becomes FMLA eligible).  Would it be illegal for the employer to then terminate the employee on November 16, 2013 (one-day before the employee qualifies for FMLA)?  This very scenario was addressed this month by a Federal Court in the case of Wages v. Stuart Management Corporation, 2014 U.S. Dist. LEXIS 63646 (May 8, 2014).

In this case, Mrs. Wages (yes, the employee’s last name was actually “Wages”) gave her employer notice of her desire to take FMLA leave on November 13, when she was not eligible.  But the FMLA leave was not to commence until November 17, when Mrs. Wages would have been eligible.  And the company fired her in the interim (thereby ending Mrs. Wages’s entitlement to wages).

The Court said, under the circumstances, the employer’s conduct was illegal:

The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.

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Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA.

You read that correctly.  The Court found that the employer interfered with Mrs. Wages’s FMLA rights by terminating her in advance of her otherwise qualifying for FMLA leave.


  1. At the outset, when an employee sues you to collect lost wages and the employee’s last name is “Wages,” be very concerned.  Something about this name just foreshadows a bad ending for the employer.  Settle quickly.
  2. In scenarios such as above, it may be unlawful for an employer to terminate an FMLA-seeking employee even before his/her one-year anniversary with the company if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off or other forms of leave.
  3. Also, if an employee seeks FMLA leave for a serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, terminating that employee could run afoul of the Americans with Disabilities Act as well.  The ADA requires reasonable accommodations for employees with disabilities.  And many FMLA “serious health conditions” qualify as disabilities too.