FMLA: Forgetting Minutiae Leads to (legal) Actions – Part II
As we continue through the convoluted maze of arcane rules known as the FMLA, we turn our focus to what makes an employee eligible for FMLA leave.
Generally, an employee of a covered employer is eligible to take FMLA leave, if the employee satisfies three requirements. They are:
- (the employee has been employed by the employer for at least 12 months;
- the employee has been employed by the employer at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and
- the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.
These requirements do not apply to flight attendants and flight crew members. Persons in such positions are subject to special eligibility requirements that are not covered in this series.
Although these three requirements may seem pretty straightforward, they are not as clear cut as they appear. Accordingly, below you will find a few questions and answers designed to assist in understanding the concept of the “covered employee.”
Does the 12 months of service have to be consecutive?
No. The 12 months of service need not be consecutive. Generally, any combination of 52 weeks equals 12 months. Even so, a seven-year break in service with the employer generally cuts off any prior service except in certain limited circumstances. Such circumstances include, but are not limited to, military service covered by The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) or written agreement, including a collective bargaining agreement.
When should it be determined if the employee meets the months of service requirement?
The determination of whether an employee has been employed by the employer for a total of 12 months must be made as of the date the FMLA leave is to start.
How are the hours of service calculated?
The FLMA’s definition of “hours of service” applies for the calculation of 1,250 hours. Accordingly, hours of service does not include those hours for which an employee is paid but does not work, such as holidays, paid vacation, and sick leave. Hours worked does include time worked as a part-time, temporary, or seasonal employee.
An employee returning from USERRA-covered military service is credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining the employee’s eligibility for FMLA-qualifying leave.
If an issue arises with respect to employee coverage, the Department of Labor takes the position that the employer has the burden of showing that the employee has not met the hours of service requirement.
When should it be determined if the employee meets the hours of service requirement?
The determination of whether an employee meets the hours of service requirement must be made as of the date the requested FMLA leave is to start.
How does an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?
First, it has to be determined where the employee’s worksite is. An employee’s worksite is the site where an employee reports. If the employee does not travel to a specific location to work, then the worksite is the location from where the employee receives assignments.
For employees with no fixed worksite (e.g., construction workers, transportation workers, salespersons), the worksite is the site that is assigned as their home base, from which their work is assigned, or to which they report. With very few exemptions, an employee’s personal residence is not considered a worksite.
The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave is employed.
While public-sector employers are covered regardless of the number of employees employed, to be an eligible employee entitled to take FMLA leave, the public-sector employee must still be employed at a worksite in which the employer employs at least 50 employees within a 75-mile radius.
When should an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?
The determination of whether 50 employees are employed within 75 miles of the worksite is made when the employee gives notice of the need for leave.
What happens when an employee does not meet all three requirements until after the employee’s need for leave has begun?
An employee’s full FMLA rights are triggered as of FMLA eligibility. An employer cannot designate leave happening before the eligibility date as FMLA leave; and therefore, the employee becomes entitled to the full 12 weeks of FMLA leave in addition to any previously taken leave.
The first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth. The next FMLA posts in this series will address the FMLA’s original qualifying reasons for leave and then the qualifying reasons added in 2008.
Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558