Do rehired employees get FMLA leave?

How to handle FMLA leave with rehired employees

How employers should handle a rehired employee’s FMLA leave depends on how long the employee was away.

For starters, employers must include all the time the employee worked for the company, and see if it amounts to at least 12 months in total. Again, those months don’t have to be consecutive.

Employers don’t have to include any time worked after an employee’s been gone from the company for more than 7 years, with some exceptions:

• The break was because of the employee’s military leave under the federal Uniformed Services Employment and Reemployment Rights Act; or
• A written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (e.g., the employee goes back to school or takes time off to raise children).

Employers also must determine whether a rehired employee has done at least 1,250 hours of work in the 12 months before leave begins.

To illustrate

Because knowing the FMLA rules around a rehired employee can be challenging, here’s an example to help employers:

Joe Employee worked for “ABC Company” for 5 years before he left for a job at another company. After a year, that company went through some restructuring, and Joe was laid off. He reapplied at “ABC Company” and was rehired.

Seven months later, Joe found out he was going to be a father and asked for FMLA leave when the baby would be born in three months.

Since Joe worked for “ABC Company” for well over 12 total months (5 years originally; 10 months as a rehire when the baby is born and leave would begin), he would be eligible for FMLA leave when the baby is born (assuming he performed at least 1,250 hours of work by then).

State leave laws

Some state leave laws, particularly paid leave, have specific provisions entitling rehired employees to jump back on the leave train where they left off. Employers must be aware of such provisions if they have employees who work in those states.

Key to remember: Whether rehired employees are eligible to take FMLA leave depends on a number of factors, including how long they were gone and why.