FMLA Clarification

CRS8383

A fellow HR person called and asked for help, and I thought I know just the group of people to ask. So here goes....

Employee is termed after two years of service due to a "no fault" attendance policy. A month later the company rehires the employee "because they were a great employee" (I know, I know insert your own joke here). The employee has been employed by the company for over 12 months, and has worked more than 1250 hours in the last year, all prior to the termination. The employee has been back to work for less than a year and has not worked 1250 hrs since returning. Does the employee qualify for FMLA leave? My answer was, yes they do qualify. Any body have a different opinion?

Down_the_Middle

nope.

HRinFL

I think you are right, but for the sake of playing devil's advocate, I believe that it could depend on how the company views the ee.

We have a short-term rehire policy, where we consider ees that have resigned and then are rehired within a certain timeframe as not having any break in service. That way, they carry over benefits, senority, etc. In cases where an ee is discharged, or take their retirement when they resign, they are not eligible for rehire for a period of one year. After that, they are eligible for rehire.

Under the short-term rehire policy, ees are not required to attend orientation, etc. that others go through, since they have been through it before and are familiar with the company. Also, we treat them as having no break in service. For these, we would probably allow them to take FMLA Leave, if they would have qualified based on hours worked, etc.

I would recommend your friend finding out how they treated this ee's rehire. If they do not consider any break in service and since the timeframe is short, I would approve (as stated earlier, I would probably approve anyway). But if they view it as a new ee, who has not met the requirements for this particular "tour of duty," and are leaning toward not approving, it may be fine to do that. I would check with an attorney or call the DOL for clarification.

Geno

Federal regulations on the matter (29 CFR Part 825.110) state that "The 12 months an employee must have been employed by the employer need not be consecutive."

Don D

The answer is yes. Very similar to 401(k) regulations. A rehired employee in either event, carries forward his prior time during the 12 month period.

stilldazed

Looks like it is well covered, but I agree with the 'yes.' Prior employment history does count in FMLA.

POPEYE

I don't think this is as cut and dried as stated. It will depend on how much time elapsed between the termination and re-hire and how many hours the EE worked.

REF from the REGS:

Section 825.110 (a)(2) "Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave"