Legal Blog

FMLA Series: What is an Eligible Employee?

Once a business establishes whether they are a Covered Employer, the next step is to establish which employees are eligible for FMLA leave. Let’s look into what is an Eligible Employee.

OVERVIEW: An Eligible Employee is one who has: (1) been employed for at least 12 months by the employer, and (2) has worked for at least 1,250 hours of service with the employer during the previous 12 month period.

STEP 1

EMPLOYED AT THE EMPLOYER FOR 12 MONTHS

When faced with a request for FMLA, the first step is to establish whether the employee has been employed for 12 months. Now, the employee does not have to be employed for 12 consecutive months, just in the aggregate. Employers only need to look back seven years. Let’s look at a few scenarios addressing only the 12-month requirement.

SCENARIO #1: Employee worked 11 months in 2009. The employee comes back and gets hired in 2022 and works for one month. Has the employee worked for 12 months under the FMLA?

Answer: NO. The federal regulations are clear that employers only need to look as far back as seven years when adding up the time of employment. Since the above employee was employed more than seven years ago, those 11 months do not count.

SCENARIO #2: Employee worked for ten months in 2017 and then took some time off. The employee then comes back in December of 2021 and has worked there ever since. Has the employee worked for 12 months under the FMLA?

Answer: YES! The federal regulations require employers to look back at the last seven years. The above employee worked an aggregate of 12 months in the last seven years.

STEP 2

EMPLOYEE WORKED FOR AT LEAST 1,250 HOURS DURING THE PREVIOUS 12 MONTH PERIOD

In addition to the 12-month requirement, the employee must have worked at least 1,250 hours during the 12 month period immediately preceding the date of the leave commencement.

This means HR professionals must first look to see whether the employee has been employed for 12 months in accordance with the regulations. Next, HR professionals must then look to see if the employee has worked 1,250 hours during the 12 month period immediately preceding the date of the leave.

SCENARIO #1: Employee worked 11 months in 2009. The employee comes back and gets hired in 2022 and works for one month. Does this employee qualify for FMLA Leave?

Answer: NO. The employee has not worked for the employer for 12 months.

SCENARIO #2: Employee worked for ten months in 2017 and then took some time off. The employee then comes back in December of 2021 and has worked there ever since. Has the employee worked for 12 months under the FMLA?

Answer: UNSURE. The employee would qualify for FMLA leave if they worked 1,250 hours from December of 2021 to the present. If they have worked that much (which would be unlikely), then they are eligible for the leave.

STEP 3

50 EMPLOYEES WITHIN A 75 MILE RADIUS

The employee must work at a site where 50 or more employees are employed within 75 miles of the worksite. In other words, if the individual works at a site with less than 50 employees, and there are less than 50 employees total within a 75-mile radius, then that employee is not covered. Let’s illustrate this:

Example: Employer A has 500 total employees. 450 of them work out of the NYC office. The other 50 employees are located at three different locations: (1) Austin, Texas [25 employees], (2) Seattle, Washington [15 employees], and (3) Miami, Florida [10 employees].

In this scenario, the employees in NYC are eligible for FMLA so long as they meet the hours and month requirement. The remaining employees in Texas, Washington and Florida are not eligible for FMLA leave since they work at a worksite with less than 50 employees within a 75-mile radius.

FMLA is a statute and regulation-driven law. There is little room for interpretation as the regulations provide much guidance. Prudent employers and HR professionals must stay on top of the regulations and updates as they arise.

Susie.Cirilli@offitkurman.com | 267.338.1395

Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day-to-day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.

 

 

 

 

 

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