FMLA - 12 month employment period

I read an article regarding case O'Connor v. Busch's Inc. stating that the 12 month employment period can span 20 years. The courts found in favor of the employee even though they had not recently worked for a consecutive 12 months. We rehire employees on a regular basis. I have an employee who is out due to an illness. He was rehired in 2010, but worked for us for a few months in 2009 too. Do I need to total all his hours from 2009 and 2010 till present time to see if he meets the 1250 hour requirements for FMLA?



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  • The total employment period is one year, spanning eternity. The 1250 hours is in the last 12 months. So, they worked 11 months in 09 and were rehired in December of 2010, they would be eligible for FMLA in January under time served; however you would count only the hours worked for the last 12 months, so, under this scenario, they would not qualify for FMLA until they worked 1250 hours from the time they were rehired.
  • First off, the O'Connor case is no longer good law. It was decided under the old FMLA regs, which were revised by the DOL in 2008.

    I agree with Joannie except for the "spanning eternity" part. Under the 2008 regulations, you don't have to count employment periods prior to a break in service of seven years or more unless: 1) the employee was on military leave; or 2) you are required to count older periods of employment under a collective bargaining agreement. Employers may also choose to recognize older periods of employment as long as they do so uniformly. The section to look at is 29 C.F.R. 825.110(b).

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