HELP AGAIN!

mrsbowden

A fellow HR friend and I had a disagreement this weekend about how to calculate someones eligability for FMLA:

We BOTH agree the ee must complete one year of service

We DISagree in that he says you MUST count all VAC. SICK. Unauthorized leave etc. when counting hours Worked (1,250)

I argued and said then why is it called HOURS WORKED? Sick, Vac, leave are NOT hours worked...

He claims they were audited by the DOL and the DOL agent said that it is stated in the reg's that you must count all of this time????

What do you guys think???

marc

The 1250 hours test pertains to actual time worked, so paid vacation, leave and other time not literally spent "at work" do not count.

lnelson

I agree with Marc it is hours worked so vac, sick, etc are not counted.

Don D

MrsBowden: You won the argument. I hope there was a meal riding on it! Tell him it's just like overtime; it applies only to hours actually worked, not other hours in pay status.

POPEYE

Your fellow HR person may not have read the entire section 825.110 of the REGS. In one of the first paragraphs describing eligibility, it states that an EE must have been employed 12 months and has been employed for at least 1250 hours of service during the 12-month period preceding the commencement of the leave. On down about 3-4 more paragraphs, it explains that the hours are counted by FLSA principles.

I guess I could understand why someone would interpret the 1250 hours differently by only reading the first part of the REGS.

njjel

However, I've read somewhere (and can't think where it was for certain) that vacation time DOES count in the year's time. Anyone else read/see that?

Don D

Yes, all time 'in pay status' counts toward the year of employment. Working, out sick, on vacation, jury duty, FMLA, comp absence, temporary assignment to another location, in jail but not terminated, etc.

njjel

Ok. Then what am I reading wrong here??? It sounds as if the advice above stated that we DON'T include vacation time.

marc

It's a two pronged test. The year of employment includes all the kinds of time, the 1250 hours test only includes the actual hours worked.

Don D

...must have been employed for one year and must have worked 1250 hours during the past 12 months.
So, a person conceivably might have been employed there for 6 years but didn't work but 1100 hours in the past 12 months. Or one might have worked 2000 hours in the past 12 months but only employed for 11.5 months. In either of those scenarios, he isn't eligible for federally mandated FML.

njjel

[font size="1" color="#FF0000"]LAST EDITED ON 02-25-04 AT 09:14AM (CST)[/font][br][br]OK. I need to clear up something then. Our policy uses the going forward time frame for FMLA so if an ee is out from 3/1/04 to 6/1/04, work the required # of hours after that except that they take 3 weeks paid vacation, when are then again eligible for another 12 weeks of FMLA? I'm pretty sure I know but want to be certain I'm correct.

Don D

Assuming they were out a full 12 weeks, they are eligible again on 3/1/05. They worked the required number of hours and the vacation is irrelevant.

njjel

Yup, Don, as I thought. This is how I have been calculating their time.

stilldazed

You may be thinking of a legal ruling that was in the news about a year ago. As I recall, the issue was that the employee satisfied the workhour requirement but was a week or so short of one year of service, had that much time in time off banked to use, and was denied FMLA protection by the employer. If what I recall is correct, the ruling was that the banked time could be used to count toward the year.