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HR
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THIS WEEK'S E-TIP
FMLA Leave: Do You Know Rules on Eligibility? Q&A |
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Are part-time employees eligible for FMLA leave? What about new employees and employees who work at branch offices? Find out what the FMLA eligibility requirements are for these employees.
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Q: We have had several requests for FMLA leave from employees that we are not sure are covered by the law. Are part-time employees entitled to FMLA leave? What about newer employees who have worked for us for several months, but not a full year? And, what if the employees work in branches away from our main headquarters?
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A: The Family and Medical Leave Act (FMLA) requires private employers with 50 or more employees and all public agencies and schools to provide “eligible” employees with up to 12 weeks of job-protected leave in a 12-month period for various family and medical reasons and up to 26 weeks in a single 12-month period for leave to care for a seriously ill or injured military family member. The FMLA has very specific employee eligibility requirements. In particular, the FMLA defines an eligible employee as one who: (1) has worked for the employer for at least 12 months (not necessarily consecutively); (2) has worked for the employer for at least 1,250 hours in the previous 12 months; and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees. See 29 U.S.C. §2611(2) and 29 C.F.R. §825.110.
(Download free Leaves of Absence model policy including HR best practices and legal
background.)
So, a part-time employee may be eligible for FMLA leave if he meets all three requirements. As a practical matter, if the employee works more than about 24 hours a week (1,250 hours divided by 52 weeks), he will meet the hours requirement. Whether an employee has worked the minimum 1,250 hours is determined by counting the actual number of hours the employee has worked in the previous 12-month period. Therefore, paid vacations, holidays, and sick leave are not counted. (An exception to this rule applies to employees on military leave protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA). According to regulations implementing the USERRA, as well as FMLA regulations, the time spent by an employee on military leave must be counted as time worked for FMLA purposes, even though the employee was not actually working.)
New employees who have worked for you for less than 12 months generally will not be eligible for FMLA leave unless they have worked for you previously. The FMLA regulations provide that the 12 months of employment do not have to be consecutive. According to regulations previous periods of employment that occurred within the past seven years must be included in calculating the 12 months required for eligibility. Even if there has been a break in employment of more than seven years, prior employment must be included in the calculation of the 12 months if the break in service was due to fulfillment of National Guard or Reserve military service, or if a written agreement (including a collective bargaining agreement) exists stating that the employer will rehire the employee after the break in service. Further, the FMLA regulations also provide that as long as you maintain the employee on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which you provide other benefits or compensation to the employee, the period counts as a week of employment.
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Note, too, eligibility is determined as of the date the leave will actually begin, not when the employee requests the leave. So, if a new employee requests leave after ten months of employment (and therefore is not eligible at the time of the request), but does not need the leave for another three months (at which point she will have worked for you for a total of 13 months) then she will meet the 12-month employment prong of the FMLA eligibility requirements.
Employees who work at branch offices generally are eligible for FMLA leave if their branch has at least 50 employees or if they work at an office that is within 75 miles of employer worksites that taken together have a total of 50 or more employees. The 75 miles is measured by surface miles such as over public streets, roads, highways and waterways (not “as the crow flies”) or in linear miles if there is no available surface transportation between worksites. For an employee who does not have a fixed worksite, such as a truck driver, construction worker, or sales representative, the location used to determine eligibility is the one which is considered the employee’s “home base,” i.e., the employer office or facility from which the employee’s work is assigned, or the location to which the employee reports.
(Download free Leaves of Absence model policy including HR best practices and legal
background.)
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HR Matters E-Tips newsletter is developed from our
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HR Matters Tools and Resource Center, featuring
the Personnel Policy Manual System (PPMS).
Subscribers to the PPMS and HR Policy Answers on CD can find more information on FMLA eligibility requirements in Leaves of Absence, Chapter 703, note 26.If you don’t have access to the PPMS, but would like to have a free, no-
obligation 14-day review, go to:
www.ppspublishers.com/ppm-ez.htm
Or just give us a call at 1-800-437-3735. |
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YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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Subscribers to the PPMS and HR Policy Answers on CD can find more
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probationary period in Introductory Period, Chapter 204, notes 1 and 2.
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