Employers often misunderstand the Family and Medical Leave Act (FMLA) regarding when an employee is eligible to take leave. Contrary to what many employers may think, not all employees are automatically entitled to leave time under the FMLA. Only about 50% of U.S. employees have FMLA coverage. Therefore, it is critical to understand what employees are covered under FMLA and when they are eligible to take leave.
Employees are eligible for FMLA coverage if they meet the following requirements:
- They have been employed for at least 12 months;
- They have worked at least 1,250 hours over the past 12 months; and
- They are employed at a worksite with 50 or more employees within a 75-mile radius.
Eligible employees are entitled to 12 weeks of leave for a qualifying reason within a 12-month period. Employers can use various methods to calculate those 12 months so long as they consistently apply the same method to all employees.
Employers must check the employee’s eligibility for leave at the first instance of leave for each qualifying reason during the 12-month FMLA period. After the employer determines that the employee is eligible for leave for that specific qualifying reason, eligibility for leave for that reason does not change for the remainder of the 12-month FMLA period.
Special Considerations in Determining Leave Eligibility
Employers must remember to include the time and hours temporary workers work toward FMLA eligibility. They also must be careful about calculating the eligibility of remote workers for FMLA leave. For the purposes of FMLA, the remote worker’s worksite is not their residence but the office to which the worker reports and receives their assignments.
Another issue that may arise in calculating FMLA leave eligibility is previous periods of employment. The 12 months of service required for an employee to be eligible for FMLA coverage need not be consecutive. Employers must count months worked during periods of previous employment unless there has been a break in employment of more than seven years. However, in some cases, even breaks in employment of more than seven years must be counted toward FMLA eligibility. For instance, if an employee wasn’t working due to military service obligations, the Uniformed Service Employment and Reemployment Rights Act requires that prior service time be counted toward FMLA eligibility, regardless of the length of the interruption in employment.
Erroneous Eligibility Determinations
Designating an employee as eligible for leave under FMLA in error can have significant unwanted consequences for employers. First, although an employer can go beyond what FMLA requires, an employer cannot credit leave given during an employee’s first year of employment against the employee’s FMLA leave allotment once the employee becomes eligible for FMLA leave. Therefore, it can be an issue if the employer grants leave to the employee during the first year of service, and the employee then becomes eligible for and requests FMLA leave after their first year of service.
Granting FMLA leave to an employee who is not legally entitled to it also can set a precedent requiring the employer to grant it to all employees who request it. Otherwise, the employer could face discrimination claims for allowing one employee to take unauthorized FMLA leave but not another.
Additionally, suppose the employer inaccurately designates an employee as eligible for FMLA leave. In that case, the employer likely cannot go back later and argue that the employee is ineligible for leave, even if the employer was mistaken. Again, this type of error can set a precedent for other employees based on the nature of the error.
Training Management
Employers should ensure that all managers are trained to identify potential FMLA issues with employees. For example, suppose employees mention the need to be off work for health-related issues or care for a family member with health-related issues. In that case, managers should know to refer them to Human Resources to discuss potential FMLA leave or, in some cases, the Americans with Disabilities Act (ADA).
FMLA and Serious Health Conditions
Employers should not always assume that every medical condition is a serious health condition within the meaning of the FMLA. A medical condition must require inpatient treatment or continuing care by a healthcare provider to qualify as a serious health condition under the FMLA. As noted above, even if a medical condition doesn’t qualify as a serious health condition for the purposes of the FMLA, it may trigger some protections for the employee under the ADA.
In some cases, employers can get medical certification to assess whether employees have a qualifying reason for FMLA leave or whether a covered family member has a serious health condition. Employers also may request reasonable documentation of a family relationship, such as a simple written statement, a child’s birth certificate, or a court document. However, employers may not request medical certification if the employee asks for FMLA leave to bond with a newborn, adopted, or foster child.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
Hall Benefits Law, LLC
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