Labor & Employment Developments Blog

Here is a scenario that I’ve seen many times:  An employee does something bad that will likely lead to termination; while the employer is investigating and deciding what to do next, the employee submits FMLA paperwork requesting leave. 

Maybe I’m a cynic but it’s possible that the employee doesn’t really need FMLA leave. 

Does the employer have to allow the leave to start if the employee complies with all FMLA requirements?  The Eleventh Circuit says not necessarily.  In Krutzig v. Pulte Home Corp. d/b/a Pulte Homes, 11th Cir., No. 09-12512, 4/5/10, the court held that an employee's right to commence FMLA leave is not absolute and the employee can be discharged before leave starts if he or she would have been discharged anyway, regardless of the employee's request for FMLA leave.  This holding is consistent with the views of the Sixth, Eighth, and Tenth circuits. 

Obviously, this scenario is high risk for employers and turns on very specific facts so it is still wise to consult an employment attorney before acting.  Nevertheless, a good decision for employers.