You’d think we’d have the FMLA figured out by now, but we have two issues that we don’t know how to address. One employee has requested leave, but she hasn’t yet worked 1,250
hours and hasn’t been employed by us for 12 months. However, by the time the requested leave would begin, she would have been employed for a year but may or may not have worked the 1,250 hours. How do we handle that? Another employee worked for us years ago, and now he’s back after a 10-year hiatus. After working seven months, he wants to take FMLA leave. He has worked 1,250 hours, but do we have to count his service from 10 years ago? —Richard T., HR Manager in Manteca
Several criteria must be met before an employee is eligible to take a medical or family leave of absence protected by the federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA). They include the reason for the leave, whether the employer is subject to the act, how long the employee has been employed, and how many hours the employee has worked. Richard’s questions focus on the latter two criteria. The FMLA and the CFRA, which are substantially similar, have some slight differences on these issues.
FMLA Eligibility
The FMLA states that an employee who is eligible for leave has been employed for at least 12 months and has completed at least 1,250 hours of service with
an employer during the previous 12-month period. In Richard’s first example, the question is whether the eligibility criteria must be met at the time the employee requests the leave or on the date the employee would go out on the leave.
The regulations implementing the FMLA state that eligibility is determined based on the date the leave would commence. This means that at the start of the
FMLA leave, the employee must have worked at least 12 months for the employer and put in 1,250 hours of service during the preceding 12-month period. Note
that both of these requirements must be met at that time, not just one.
The regulations further clarify that if an employee notifies an employer of the need for leave before meeting these eligibility criteria, the employer must
either confirm the employee’s eligibility based on a projection that the employee will be eligible on the date the leave would begin or must advise the employee when the eligibility requirement is met. An employer that confirms the employee’s eligibility at the time it received the leave notice may not subsequently challenge the employee’s eligibility.
If the employer does not confirm the employee’s projected eligibility within two business days from the date of the employee’s request, the employee is considered to have satisfied the notice requirement. If the employer doesn’t advise the employee whether he or she is eligible before the date the requested leave is to begin, the employee will be eligible. The employer may not then deny the leave.
Satisfying the Months and Hours Requirement
Now, let’s turn to determining whether employees have satisfied the dual requirements of working for the employer for at least 12 months and for 1,250 hours of service.
The FMLA regulations state that the 12 months an employee must have been employed by the employer need not be consecutive months. Further, if an employee
is on the payroll for any part of a week, the entire week is counted toward the 12-month requirement. For employees who work on an intermittent or occasional
basis, 52 weeks is considered to be 12 months. Thus, once an employee works in each of 52 weeks, he or she has met this 12-month eligibility criterion.
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
Here, Richard has an employee who worked for the company for more than 12 months, but that was 10 years ago. A 2006 federal appeals court decision clarifies this point.1 In Rucker v. Lee Holding Co., an employee
rejoined the company after a five-year hiatus. He had previously worked for the employer for several years. Seven months after rejoining the company, he took a
medical leave and was terminated two months later. He sued, alleging that the employer violated the FMLA.
The First Circuit Court of Appeals, ruling that the FMLA and its regulations did not clearly define whether prior periods of service counted toward the 12-month requirement, asked the U.S. Department of Labor (DOL) to weigh in on the matter. The court then relied on the DOL’s interpretation in finding that the regulations provide that the 12-month employment requirement can be met through nonconsecutive—and thus prior—periods of employment, even when there is a gap of several years.
Although the DOL also expressed that a break in service of more than five years would be too long to count toward the 12-month requirement, the First
Circuit declined to issue such a rule. Therefore, breaks in service of any length are not a bar to the 12-month employment eligibility requirement.
The 1,250 minimum hours of service requirement is determined according to principles established under the federal Fair Labor Standards Act for determining compensable hours of work. The key factor is the number of hours an employee has worked for the employer, which is not limited by recordkeeping methods or by compensation agreements that do not accurately reflect all of the hours an employee has worked or has been in service to the employer. If an employer does not maintain accurate records of hours worked by an employee, including for overtime-exempt employees, the employer has the burden of showing that the employee has not worked the requisite hours.
The Rules Under the CFRA
The CFRA’s regulations state that an employee is eligible for leave if he or she has “more than 12 months (52 weeks) of service with the employer at any time.” This makes clear that an employee’s break in service would not affect eligibility. The 1,250-hour minimum service requirement is the same as under the FMLA.
The CFRA regulations also address eligibility determinations for an employee who has not worked for her employer for 12 months prior to taking a pregnancy
disability leave, but who meets the requirement during the pregnancy leave and wishes to take CFRA leave for new child bonding time. The CFRA states that the
12-month period in which the employee must have worked 1,250 hours is the period immediately preceding her first day of FMLA leave based on her pregnancy, not the first day of the subsequent CFRA leave for new child bonding. That is, the employee must be eligible for FMLA leave at the time that she begins her pregnancy disability leave in order to later qualify for CFRA leave for new child bonding.
Changes on the Horizon
Employers should note that the DOL recently published proposed revisions to the FMLA regulations to address several areas, including employer and employee
notice requirements and medical certifications. The DOL seeks to update the regulations to assist employees and employers to better understand their rights and responsibilities under the FMLA. The deadline for comments on the proposals is April 11.
Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.
1Rucker v. Lee Holding Co., U.S.C.A. 1st Cir. No. 06-1633, 2006