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Employees don’t need to be actively at work for 12 months to qualify for FMLA

Time on the company payroll counts toward the eligibility criterion

Updated February 28, 2019

Crystal had worked for the company for 11 months when she left for maternity leave. The company felt it was a good idea to allow Crystal the leave even though she had not yet met the Family and Medical Leave Act (FMLA) eligibility criterion of working for the company for 12 months. She was, after all, having a baby. Not allowing the leave could risk a social media backlash and put the company in a less-than-stellar light.

Now, while on leave, Crystal has reached her 12-month anniversary with the company, and Ivan, the leave administrator, is wondering if she would be eligible for FMLA leave, even though she has not worked for a full twelve months. If she is eligible, would the 12-week leave period begin from the point Crystal became eligible, is it retroactive backwards to the date of birth, or prorated since the FMLA eligibility began four weeks after birth?

The law

The FMLA eligibility criteria are fairly straightforward. An employee needs to:

  • Have worked for the company for at least 12 months,
  • Have worked at least 1,250 hours in the 12 months before leave is to begin, and
  • Work at a site with at least 50 company employees within 75 miles.

Like so much of the FMLA, however, the devil is in the details. Let’s take the first criterion. True, an employee needs to have worked for the company for at least 12 months, but those 12 months need not be consecutive, and the employee needs not be actively at work during all 12 months.

If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (including sick, vacation, etc.) during which other benefits or compensation are provided by the company (e.g., workers’ compensation, group health plan benefits), the week counts as a week of employment. In this regard, 52 weeks is deemed to be equal to 12 months.

Therefore, even if an employee is not actively working, as long as he or she is on your payroll, that time counts toward the 12-month eligibility criterion.

Meeting the 12 months while on non-FMLA leave

In our story, Crystal would be entitled to 12 weeks of FMLA leave only once she met the eligibility criteria. The leave taken before that would not be FMLA leave. It would not be retroactive to when the qualifying reason began. Therefore, the 12 weeks of leave begin only after she meets the eligibility criteria.

For example, if Crystal began non-FMLA leave on 2/6/19, and on 3/3/19, she met the FMLA eligibility criteria of working at least 12 months, as of 3/3/19, she would be entitled to 12 weeks of FMLA leave.

Of course, this can result in the employee having more than 12 weeks off. In Crystal’s case, she could end up with 16 weeks off, 12 of which would be FMLA leave.

The reason (pregnancy/delivery/bonding, serious health condition, family care) would not matter in regard to when FMLA leave began – it begins once the employee meets all the eligibility criteria. Leave to care for a child after birth/adoption/foster placement, however, would need to completed within 12 months of the birth or placement.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

FMLA EssentialsJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with Family and Medical Leave Act requirements, control costs related to leave taken and minimize the law's potential disruption to operations.


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