It seems you can’t get through a day without hearing or reading a story about an FMLA claim–and small wonder at that. The FMLA is very complex, and fraught with traps for even the most well-intentioned employers. Most stories seem to involve FMLA interference or retaliation claims. These stories, of course, pre-suppose that the employee is entitled to FMLA leave. FMLA entitlement is not a given, however. Your employee may request time off to take care of his/her own or a family member’s medical condition, but you may not be obligated to give and s/he may not be entitled to take that time under the FMLA. Let’s find out some more, after the jump…
First, while most of us know what it is by now, let’s define the FMLA in one sentence. The Family Medical Leave Act is a federal law that requires covered employers to allow eligible employees up to 12 weeks of unpaid job-(and benefit) protected leave within a defined 12-month period for specified family and medical reasons. (See that was one sentence, even if it was a bit long.)
So, are you a “covered employer”?. Many employers are not. If you are a private sector employer, you must have 50 or more employees within a 75-mile radius in 20 or more work weeks in either the current or preceding calendar year; (If you are a public employer or any type of elementary or secondary school, you will be subject to the FMLA regardless of the number of employees). If you do not meet these criteria your employees will not be entitled to job-protected leave under the FMLA. Here are some examples of how this may work:
- You have one location with 40 employees;
- You have two locations with 25 employees each that are 85 miles apart;
- You currently have 60 employees within a 75-mile radius, but your employee count did not exceed 50 until 8 weeks ago.
Suppose you are a covered employer. That does not mean that all your employees who request FMLA leave will be eligible. For example, your administrative assistant, who you hired six months ago, tells you that starting 4 weeks from today, he wants to take off 8 weeks FMLA time to care for his brother, who needs surgery. Do you have to allow it under the FMLA? No, because he is not eligible.
Who is an “eligible employee”? An eligible employee is one who a) works for a covered employer; b) has worked for the employer for at least 12 months; c) has at least 1250 hours of service for the employer during the 12 months immediately preceding the leave; and d) works at a location with at least 50 employees within a 75-mile radius (I know, we covered this part already.)
Your assistant is not eligible because, even assuming you are a covered employer with at least 50 employees within a 75-mile radius, he has not worked for you for at least 12 months, and does not have at least 1250 hours of service for you during the 12 months immediately preceding the leave.
What types of leave are covered? An employee may request FMLA leave for any one of the following reasons:
- To prepare for birth of a child;
- To care for a newborn child;
- For adoption or foster care placement of a child;
- To care for a spouse, child (step-child, adoptive or foster child), or parent (or step-parent, foster parent, or one who, while the employee was growing up essentially acted as his/her parent) with a serious health condition;
- To care for an employee’s own serious health condition;
- To transition employees or spouses called to active duty;
Note that care of a sibling’s serious health condition, while a commendable desire, is not a covered reason under the FMLA, so again, your assistant’s request is not covered under the FMLA.
Now what about the defined twelve-month period? You actually have four options for establishing what that 12-month period will be, as long as you apply it uniformly to all employees who take FMLA leave (unless you are a multi-state employer with employees working in a state that requires a specific method for determining the leave period.) Here are your options:
- The calendar year (i.e. January 1 – December 31) If you use this method then FMLA time taken in a calendar year is counted against a subsequent leave in that same calendar year. So, if two years later, your assistant takes 12 weeks of FMLA time from January 1 through March 31 and requests another FMLA leave in November of the same year he is not eligible for more FMLA leave until after December 31.
- Any fixed 12 months: This works pretty much the same way as the calendar year only you pick the dates. You can use the fiscal year of October 1 through September 30 or the anniversary of the employee’s start date. Using the example of your assistant who took leave time from January 1 through March 31, if you use a fiscal year, he cannot take any more FMLA leave until after September 30.
- A twelve-month period measured forward: You measure forward from the first date your employee takes FMLA leave. The next twelve-month period begins twelve months later. If you use this method, then if your assistant takes FMLA leave starting March 15 and uses all twelve weeks, he will not be eligible for more FMLA time until March 15 of the following year.
- A “rolling” 12-month period measured backward: Using this method, each time an employee takes FMLA leave the remaining leave entitlement is the balance of those 12 weeks that has not been used in the immediately preceding 12 months. (This appears to be the most common method used by employers.) Let’s come back to your assistant. If he requests 6 weeks’ FMLA leave starting June 20, you would look back from June 20 to June 21 of the prior year. If between the previous June 21 and the current June 20 he already took 12 weeks’ FMLA leave he will not be eligible for FMLA leave.
Employees also have to provide timely responses to requests for certification of FMLA under certain circumstances or that too could render them ineligible for FMLA leave. I’ll address that in next week’s post. Meanwhile, one final caveat (for now, anyway): An employee who is not eligible for FMLA leave may still be eligible for family/medical leave under either the ADA or applicable state laws, so always make sure to check the laws in any state where you have employees.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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