Becoming eligible during a leave

KP68 · September 2003

Just to confirm: if an employee is out for pre-natal complications and is currently ineligible for FML protection (hired <1 year ago), but hits the one year mark during the time off, do we notify her of her eligibility and start tracking the 12 weeks once she is eligible while still on leave? (This is all under the assumption that she had put in 1,250 hours prior to her going out.)

PAhr · September 2003

Yes. If today is the one year mark you should send a certified letter that she meets the requirements for FMLA and you would appreciate her contacting you in regards to getting the paperwork filled out and going over the responsabilities that the company and she have and an FMLA application.

KP68 · September 2003

OK, so what about this: she was put on a reduced schedule for the past month. Only count the actual hours she worked towards the 1,250, correct? What about eligible short term disability pay? Does that count as eligible time? Or is it as straight forward and simple as hours worked only?

PAhr · September 2003

You only count the hours actually worked. No PTO, vacation or personal leave for the hours part. For the year part you simply go by date of hire and as long as she was an employee (even while off on vacation, PTO, personal leave) for the full year she qualifies. Basically, if she worked at least eight months full time, then she has met the required hour part regardless of whether her last month was part time.

KP68 · December 2003

I need to be 100% clear on this response: "If today is the one year mark you should send a certified letter that she meets the requirements for FMLA".

So this means that if an employee has been out for a month, for example, prior to her one year anniversary - has put in 1250 hours prior to the leave - she will get an ADDITIONAL 12 weeks off, on top of the time she has already been out??

I think what I need to have answered is do employees have to be actively employed on the date of eligibility for FMLA? Will this negate the '12 months of employment' if she has been out prior to her anniversary?

POPEYE · December 2003

>I need to be 100% clear on this response: "If
>today is the one year mark you should send a
>certified letter that she meets the requirements
>for FMLA".
>
>So this means that if an employee has been out
>for a month, for example, prior to her one year
>anniversary - has put in 1250 hours prior to the
>leave - she will get an ADDITIONAL 12 weeks off,
>on top of the time she has already been out??
>
>I think what I need to have answered is do
>employees have to be actively employed on the
>date of eligibility for FMLA? Will this negate
>the '12 months of employment' if she has been
>out prior to her anniversary?

Section 825.110 part (b) specifically addresses your question. To paraphrase: If an EE is maintained on the payroll including any periods of paid or unpaid leave (sick, vacation..) during which other benefits or compensation are provided (insurance etc.) the week counts as a week of employment.

So to answer your question, if she has continued to be on your payroll during this leave then NO the 12 months of service will not be negated and she will have her full 12 week entitlement available on her 1 year anniversary.

Don D · December 2003

And to answer your other question, yes, if you already have her out on some sort of approved leave, then at the time she becomes eligible for FML and her 'clock' starts with the first hour of designated FML, she has 12 weeks maximum to take, unless your state grants more.

KP68 · December 2003

But what about this:
(from the DOL's Q&A Section)

"Q: Do the 1,250 hours include paid leave time or other absences from work?
A: No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included."

I realize that this is addressing the 1250 hours, not being actively employed on her anniversary, but it seems to contradict the last response, don't you think?

So as long as they are not terminated, regardless of their status - currently on paid or unpaid disability leave, etc., they are eligible on their 12 month anniversary? Sorry to question it so much, but I'm not really 100% confident with this answer yet.

cthr · December 2003

The requirement is two fold:

A. 12 months of service

and

B. 1250 hours worked (does not include leave time)

If the person physically worked 1250 hours before she went on leave and you have continued to keep her on your payroll (even unpaid) then she meets the requirements and will have 12 weeks available on her year anniversary.

juju · December 2003

I just listened to a pretty good seminar on this topic. The moderator explained that employees who are NOT FMLA eligible but BECOME eligible after already going out on some other type of leave actually get a better deal since their 12 weeks starts after they have already taken time off. So they can end up getting more than 12 weeks. As far as eligibility, I agree with the above posters - as long as she previously worked 1250 hours sometime in the past 12 months and has been employed for at least a year (active/inactive, paid/unpaid, whatever, as long as she was not termed), she would be eligible for FMLA. You are correct that paid and unpaid leave do not count toward hours worked, but they do count towards the 1 year of employment.

Becoming eligible during a leave

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