The Family and Medical Leave Act (FMLA) continues to befuddle, annoy, and distract every HR manager. In today’s Advisor, explanations of the most confusing aspects of leave management.
The number one FMLA question involves eligibility for leave. "Twelve months and 1,250 hours" should be the clearest of guidelines, but it’s not quite so simple.
Let’s break it down. There are three criteria for eligibility for FMLA, and all three must be met:
1. The employee must have worked for at least 12 months for the employer from whom leave is requested.
2. The employee must have worked for at least 1,250 hours during the 12 months immediately preceding the start of the leave.
3. The employee must work at a worksite where 50 or more employees are on-site or within a 75-mile radius of the worksite.
12 Months’ Service
First of all, the 12 months’ service requirement is calculated as of the date leave begins, not the date leave is requested.
The 12-month service requirement does not require consecutive months of service. However, employment periods prior to a break in service of 7 years or more need not be counted, except in two circumstances. Employers must credit service beyond the 7-year cap:
4. If the employee’s break in service is caused by his or her service in the National Guard or reserves, or
5. If the employee and employer have a written agreement concerning the employer’s intention to rehire the employee after the break in service (e.g., if the break is for purposes of the employee furthering his or her education or for child-rearing purposes). This includes collective-bargaining agreements.
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If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (e.g., sick leave, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits), the week counts as a week of employment.
Furthermore, for purposes of determining whether intermittent, occasional, or casual employment qualifies as "at least 12 months," 52 weeks is deemed to be equal to 12 months.
Employers may also choose, as a matter of policy for all types of leave, to consider employment prior to a continuous break in service of more than 7 years when determining whether an employee has met the 12-month employment requirement.
1,250 Hours
As with the 12-month requirement, the determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months must be made as of the date the FMLA leave is to start.
The number of hours an employee has worked is determined in accordance with principles established under the Fair Labor Standards Act (FLSA). The FLSA requires that nonexempt employees be paid only for the hours they actually work. Hours an employee was on vacation or on leave, even if the vacation or leave is paid, do not count as hours worked and, therefore, are not included in determining if an employee satisfies the 1,250-hour threshold.
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In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt, the employer has the burden of showing that the employee has not worked the requisite hours.
For example, an employer must be able to clearly demonstrate that full-time teachers (who often work outside the classroom) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave.
Note: Special rules apply to flight crews.
In addition, for both the 12-month service requirement and the 1,250 hours requirement, an employee returning from fulfilling his or her National Guard or military reserve obligation must be credited with the hours of service that would have been performed but for the period of military service.
In tomorrow’s Advisor, the third leg of eligibility—worksite size—and the challenging issue of FMLA and substance abuse, plus notice of an extraordinary upcoming "FMLA Boot Camp" webinar.
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