HR Management & Compliance

FMLA: The ‘Simple’ Three-Prong Test Isn’t

There’s supposed to be a simple three-prong test for FMLA eligibility, but it’s not simple—and there are four prongs.

The first prong, which isn’t usually mentioned, is that the person has to be on the payroll. The person can be part-time or full-time, but he or she has to be on the payroll. Once that condition is satisfied, then come the standard three prongs, all of which must be satisfied for an employee to be eligible for FMLA leave:

  1. The 12-month minimum service requirement
  2. The 1,250-hours minimum time requirement
  3. The 50 employees within a 75-mile radius requirement

Prong 1. 12-Month Minimum Service Requirement

The employee must have worked for the employer for 12 months. The regulations do not require consecutive months of service. However, the 2009 final FMLA regulations do require that the 12 months of service must be completed within the 7 years preceding the commencement of the leave—
except that employment before a 7-year break in service must be counted if:

1. The break in service is caused by the fulfillment of a National Guard or reserve military service obligation. Under these circumstances, the time served performing the military service must also be counted.

2. There is a written agreement, including a collective bargaining agreement, concerning the employer’s intention to rehire the employee after the break in service (e.g., if the break were for purposes of the employee furthering his or her education or for childrearing purposes).

3. Employers, at their own discretion, decide to consider employment before a continuous break in service of more than 7 years as a matter of policy. However, the employer must apply such a policy uniformly with respect to all employees with similar breaks in service.

The 12-month minimum service requirement is calculated as of the date leave begins, not the date leave is requested. If an employee requests leave before the eligibility criteria have been met, the employer may have to project to when the date of eligibility begins to see whether the employee will be eligible by the proposed leave date.


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Defining 12 Months

To determine whether intermittent, occasional, or casual employment qualifies as at least 12 months of work, the regulations state that 52 weeks is deemed to be equal to 12 months. What’s a week? If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (workers’ compensation, group health plan benefits, etc.), the week counts as a week of employment.

Prong 2: 1,250 Minimum Hours Requirement

Employees must have worked for the employer for at least 1,250 hours during the 12-month period before the leave begins.

The number of hours an employee has worked is determined in accordance with principles established under the FLSA. Since under the FLSA nonexempt employees are paid only for the hours actually worked, only hours actually worked count for FMLA eligiblity.

Hours an employee was on vacation or on leave, even if the vacation or leave is paid, do not count as time worked and, therefore, are not included in determining if an employee satisfies the 1,250-hour threshold.

Note that this is different from the 12-month service requirement, where time on sick leave or vacation is included in determining if the employee satisfies the 12-month requirement.

If an employer does not maintain an accurate record of hours worked by an employee, the employer has the burden of showing that the employee has not worked the requisite hours. In the event the employer is unable to meet this burden, the employee will be found to have met the 1,250-hour-requirement test.


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Military Service Time Counts Toward FMLA Eligibility

The final 2009 FMLA regulations provide that in determining whether an employee has fulfilled 1,250 hours of service, an employee returning from fulfilling his or her National Guard or reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service.

For example, take an employee returning from 31 weeks of active duty who typically works 40 hours per week, and who had accrued 840 work hours before military service. This employee would be credited with 2,080 hours of work (31 weeks x 40 hours, plus the 840 hours already earned), enough to meet the 1,250-hour requirement.

In tomorrow’s Advisor, the third prong—50 employees in a 75-mile radius—plus an introduction to the "FMLA Bible," the unique guidance program that answers all your FMLA questions.

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