March 11, 2009

Determining Employee Eligibility Under the FMLA

Eligibility Requirements

To be eligible for FMLA leave an employee who works for a covered employer must satisfy the following criteria:

  1. The employee must have been employed by the employer for at least a total of 12 months before the commencement of the leave;
  2. The employee must have worked at least 1,250 hours in the 12 months immediately preceding the leave; and
  3. The employee must work at a site at which the employer has 50 or more employees within a 75-mile radius.

These basic requirements from the act itself are expanded upon in the regulations.

12 Months of Employment

The 12 months of employment need not be consecutive. Not only is current employment counted, but employment before a break in service is counted as well. According to the new regulations, the 12 months does not include employment periods prior to a break in service of seven years or more unless:

  1. The break in service was for National Guard or Reserve military service;
  2. There was a written agreement stating the employer's intention to rehire the employee after a break in service; or
  3. The employer chooses to recognize such prior employment, so long as the employer acts uniformly.

Note that the new regulations refer in some places to a break in service of "seven or more years" but refer in other places to a break of service of "more than seven years." In most situations it will not matter which term is applied.

To the extent consistent with the Uniformed Services Employment and Reemployment Rights Act (USERRA), time served in fulfilling a National Guard or Reserve military service obligation must be counted in determining whether the employee has been employed for at least 12 months.

According to the Labor Department commentary that accompanies the new regulations, it is the employee's burden to establish eligibility. If an employer's records do not go back far enough to confirm the earlier periods of employment allegedly worked by the employee, the employee may provide documents such as a check stub or a W-2 form to establish eligibility.

1,250 Hours of Service

Rules developed under the Fair Labor Standards Act for determining compensable hours of work apply when determining for FMLA purposes whether an employee has worked 1,250 hours in the 12 months immediately preceding the beginning of the leave. The 1,250 hours of service does not include time during which an employee performs no work, even if it is paid (such as for holidays or paid vacation). An exception is that time that would have been worked during a period of National Guard or Reserve military service is included in the 1,250 hours.

50 Employees Within 75 Miles

The employee must work at a site at which the employer has 50 or more employees within a 75-mile radius. This means, for example, that even though employees at an employer's large headquarters may be eligible for FMLA leave, employees at a small, remote satellite location might not be eligible. Whether this requirement is met is measured as of the time that the employee gives notice of the need for leave.

For employees with no fixed worksite, such as sales representatives, the worksite for FMLA purposes is the site to which the employees are assigned as their home base, from which their work is assigned, or to which they report. Accordingly, employers should not simply assume that an employee who works alone at a remote location is not covered by the FMLA.

In the case of joint employment by two or more employers, the worksite of the employee's primary employer is generally the worksite of the employee. However, when the employee has worked for at least one year at the facility of a secondary employer, the secondary employer's facility is the worksite of the employee for the purpose of determining whether there are 50 or more employees.

Leave Begun Before Eligibility

Many employers have leave policies that apply to employees who have not yet been employed long enough to qualify for FMLA leave. For example, an employer's short-term disability leave policy may apply to employees who have not yet worked 1,250 hours. Leave taken pursuant to an employer policy before an employee satisfies the FMLA eligibility requirements is not protected by the FMLA and may not be counted by the employer against the employee's annual 12-week allotment of leave. According to the new regulations, a leave that starts before eligibility is established becomes FMLA leave after the eligibility requirements are satisfied. This point was not clear under the prior regulations. However, only the time taken after the establishment of eligibility counts as FMLA leave.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed in this article.

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