To be or not to be eligible for FMLA leave

FAQs on employee eligibility

Posted April 7, 2017

Not just anyone has the right to the notable protections of the Family and Medical Leave Act (FMLA). To be entitled to such protections, an employee needs to meet certain criteria. Therefore, one of the first tasks an FMLA administrator has after learning of the need for leave, is determining whether or not the employee in question meets those criteria:

  • Worked for the company for at least 12 months (need not be consecutive),
  • Worked at least 1,250 hours in the 12 months before leave is to begin, and
  • Works at a site with at least 50 company employees within 75 miles.

While these seem fairly simple, FMLA administrators often have questions regarding an employee’s eligibility. Here are some such questions.

Q: Are part-time employees entitled to FMLA leave?

A: Whether the employee is part-time or full-time does not matter. If the employee has worked at least 12 months and 1,250 hours in the past 12 months, he would meet those criteria for FMLA. A part-time employee could work 28 hours per week and still meet these criteria (28 x 4 = 112; 112 x 12 = 1,344).

Q: If our company has locations with only 20 employees, and they are more than 200 miles from other company locations, will those employees be eligible for FMLA leave?

A: No, if the locations where these employees work have fewer than 50 company employees within 75 miles, the employees will not be eligible for FMLA leave.

Q: What if we have an employee who works out of his home? Would he be eligible? There are no other company employees within 75 miles.

A: An employee’s personal residence is not considered a workplace for purposes of the FMLA. Therefore, for employees who work out of their home, their worksite is the office to which they report and from which assignments are made.

Q: When looking at the 1,250 hours worked, does that include vacation, PTO, or other time off?

A: No, the 1,250 hours are hours actually worked. You need not include any hours not actually worked, such as vacation, PTO, etc.

Q: When may we recalculate an employee’s eligibility when he or she takes intermittent FMLA leave?

A: Once an employee is determined to be eligible for FMLA leave, whether the leave is taken continuously or intermittently, the employee remains eligible for the duration of the 12-month leave year period. Eligibility may be recalculated at the time of the first absence for the condition after the conclusion of the 12-month leave year period. If you are using the rolling backward method to calculate the 12-month leave year period, an employee’s eligibility for absence due to a particular condition would continue for 12 months from the date of the first FMLA absence for the condition.

Q: How do we determine whether employees worked at least 1,250 hours if they are exempt and we do not otherwise keep records of their hours worked?

A: In such an event, you (the employer) would have the burden of showing that a particular employee has not worked the requisite hours. This could be challenging if you have no records to support such a showing. Neither the FMLA nor the Fair Labor Standards Act prohibit employers from keeping such records of exempt employees.

Q: Do hours worked for the company, but outside of the U.S., count toward the 1,250 hours?

A: While this is not directly addressed in the FMLA or its implementing regulations, the hours worked outside the U.S. likely need not be included in the 1,250 hours. For the definition of “hours worked” for FMLA purposes, one must refer to the Fair Labor Standards Act (FLSA). Under the FLSA, work performed outside the U.S. does not count. Therefore, it is logical that hours worked outside the U.S. would not be included in the 1,250 hours for FMLA purposes.

If, however, an employee works both inside and outside of the U.S. in the same workweek, you would count the time worked outside of the U.S. during that workweek, since any covered time in a workweek makes all time worked covered.

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

J. J. Keller® FMLA Manager™ ServiceJ. J. Keller® FMLA Manager™ Service makes leave tracking easier while complying with the latest federal & state regulations.


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