The dispute was over Babock's eligibility for protection under the FMLA. Generally, disputes regarding employee eligibility center around whether the the employee (or a family member, etc.) has a "serious health condition" that meets the statutory definition. In this case, however, the dispute was whether Babcock had worked for BellSouth for 12 months at the time she requested leave. Sec. 2611(2)(A).
Babcock commenced her leave of absence on May 19 -- before she had worked for BellSouth for one year. Her request for short-term disability leave was granted through May 27 under BellSouth's policies. BellSouth demanded that she return by June 9, and it added that failure to return on that date could result in termination. Thus, from May 28 to June 9, Babcock was on an unexcused leave of absence. On June 9, however, Babcock requested additional unpaid medical leave. By that time, her one year anniversary had passed, making her FMLA eligible. The district court allowed the question to go to the jury which found her to be a covered employee under the Act. On appeal, the Fourth Circuit affirmed the verdict, holding
Through the FMLA, Congress gave Babcock certain protections once she passed the one-year mark at BellSouth. Having allowed Babcock to remain employed for more than one year, and having cut off her short-term disability leave, BellSouth cannot now avoid its responsibilities under the statute. The jury found that Babcock was eligible for leave under the FMLA, that her absence from work was caused by a serious health condition, and that she was fired because of her absence from work. There was ample evidence in the record — taken in the light most favorable to Babcock — to support this verdict, and BellSouth was not entitled to judgment as a matter of law. Accordingly, the judgment of the district court is AFFIRMED.
BellSouth's argument in this case was that the absence was one continuous absence that should not have been covered by the FMLA because, at its inception, Babcock was not a covered employee. Had BellSouth just fired her for unexcused absences between May 28 and May 31, it probably would not have violated the FMLA. However, BellSouth maintained her as an employee until after her June 1 anniversary date, and gave her the opportunity to request additional leave, which she did.
This would seem to indicate that any ineligible employee who becomes eligible during his or her leave of absence could be protected under the Act, so long as the other statutory requirements are met ("serious health condition," 1250 hours, etc.). Employers cannot merely look at how the leave was classified at its inception--even if the leave is continuous.