FMLA eligibility

pepper

An employee has not yet been employed by the firm for 12 months. She is pregnant and will start her leave prior to being employed by the firm for 12 months. Can she become eligible for FMLA while she is already on leave (she will have met the 1250 hours requirement) or, does an employee have to be employed for 12 months PRIOR to starting the leave? (She will be short of the 12-month employment anniversary by 2 or 3 weeks).

NaeNae55

You are in very iffy territory here.

She will definitely be eligible for FMLA on her anniversary, the time before that though is questionable. There was a case where the person was just a little shy from the date and the company denied the FMLA. The employee sued and won. The court said it was close enough. I can't remember the time period in question, but it wasn't any more than a week or so. I also can't remember which court district this happened in.

You are looking at 2-3 weeks, and we don't know if you are even in the same court district that had the above ruling. As I said, very iffy.

How do you handle pregnant employees who need to start their leave after only 6-8 months of employment? I would handle her the same way for the 2-3 weeks, and then designate the balance of the time FMLA. BTW, however you handle her leave before her anniversary date, her full 12 weeks of FMLA starts on her anniversary date.

Good luck!

Nae

davids

I faced a similar situation once. After consulting with our attorney, we decided the employee would become eligible while on leave. The employee is still employed while on leave and, therefore, would meet the 12-month threshold even though she was on leave. Clearly this was our decision and is not necessarily the right answer; but my guess is that DOL and courts would interpret the FMLA in the most employee-friendly manner possible.