Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.

Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.

The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.

On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

The court held that the ADA prohibits discriminating against an employee because the employee has a disabled family member, while narrowly defining the scope of that protection.

Under the decision, an employer may not fire or fail to promote an employee because the employee has a disabled family member. However, the court declined to extend the protection of the ADA to an employee whose employer had known for years that the employee’s child was disabled. The court in Erdman distinguished between knowledge that employee had a disabled child and knowledge that the employee would need time off to care for that child. Because the employer knew about the child’s disability for years and did not retaliate sooner, the court held that a jury could nt find that the employer was motivated by the disability. Rather, the trigger for the discrimination was the employee’s request for time off to care for the disabled child. This request provides protection to the employee under the FMLA, but not under the ADA.