Need FMLA Leave? Ask at Your Peril!


That is how one court described the quandary an employee faced after asking for FMLA leave. Here’s the brief, back story.

An employee asks for FMLA leave. The reason for which she requests the leave is not FMLA-qualifying. So, the employer properly tells her she is not eligible for FMLA leave. The employer then fires her.  Of course, she sues. She alleges the employer retaliated against her for exercising her FMLA rights. But, the employer asks, how does one exercise their FMLA rights when they don’t have any?!

Therein lies the rub. The court noted that the FMLA protects an employee’s “attempt” to exercise FMLA rights. Sometimes an employee needs to ask if she is eligible in order to know if she is, or is not. “[F]iring an employee for asking would also frustrate the aims of the Act…Such an ‘ask at your peril’ approach could deter employees…from taking the first step necessary to exercise their rights.”

Originally published on Five L Net blog.



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