Employees' Pre-Eligibility FMLA Rights

The Family and Medical Leave Act (FMLA) is perhaps the most difficult federal employment statute with which to comply. Even well-intentioned employers unknowingly violate the FMLA's technical notice requirements. Moreover, while the majority of employees take leave for appropriate, FMLA-qualifying reasons, employers sometimes express frustration that a minority of employees are abusing their FMLA rights by providing inaccurate information to them and/or their physicians in order to obtain FMLA leave to which they are not entitled. In fact, some employers have gone so far as hiring private investigators to follow their employees while on FMLA leave, and in a number of instances, have discovered that an employee is engaging in activities that violate his/her medical restrictions or otherwise conflict with the information that the employee provided to the employer and/or the employee's physician. (Employers considering this type of surveillance should first consult with an attorney, as some employees have successfully argued that the surveillance itself constitutes actionable retaliation under the FMLA.) For these and other legitimate reasons, employers tend to strictly construe the FMLA's eligibility requirements and, when leave eligibility rights have not been satisfied, fail to afford employees some of the often-overlooked, pre-eligibility rights to which they are entitled under the FMLA.