FMLA: What is an Eligible Employee?
Once a business establishes whether they are a Covered Employer, the next step is to establish which employees are eligible for FMLA leave. Let’s look into what is an Eligible Employee.
OVERVIEW: An Eligible Employee is one who has: (1) been employed for at least 12 months by the employer, and (2) has worked for at least 1,250 hours of service with the employer during the previous 12 month period.
STEP 1
EMPLOYED AT THE EMPLOYER FOR 12 MONTHS
When faced with a request for FMLA, the first step is to establish whether the employee has been employed for 12 months. Now, the employee does not have to be employed for 12 consecutive months, just in the aggregate. Employers only need to look back 7 years. Let’s look at a few scenarios addressing only the 12 month requirement.
SCENARIO #1: Employee worked 11 months in 2009. The employee comes back and gets hired in 2022 and works 1 month. Has the employee worked for 12 months under the FMLA?
Answer: NO. The federal regulations are clear that employers only need to look as far back as 7 years when adding up the time of employment. Since the above employee was employed more than 7 years ago, those 11 months do not count.
SCENARIO #2: Employee worked for 10 months in 2017, and then took some time off. The employee then comes back in December of 2021 and has been working there ever since. Has the employee worked for 12 months under the FMLA?
Answer: Yes! The federal regulations require employers to look back at the last 7 years. The above employee worked an aggregate of 12 months in the last 7 years.
STEP 2
EMPLOYEE WORKED FOR AT LEAST 1,250 HOURS DURING THE PREVIOUS 12 MONTH PERIOD
In addition to the 12 month requirement, the employee must have worked at least 1,250 hours during the 12 month period immediately preceding the date of the leave commencement.
This means, HR professionals must first look to see whether the employee has been employed for 12 months in accordance with the regulations. Next, HR professionals must then look to see if the employee has worked 1,250 hours during the 12 month period immediately preceding the date of the leave.
SCENARIO #1: Employee worked 11 months in 2009. The employee comes back and gets hired in 2022 and works 1 month. Does this employee qualify for FMLA Leave?
Answer: NO. The employee has not worked for the employer for 12 months.
SCENARIO #2: Employee worked for 10 months in 2017, and then took some time off. The employee then comes back in December of 2021 and has been working there ever since. Has the employee worked for 12 months under the FMLA?
Answer: UNSURE. The employee qualifies for FMLA leave if they worked 1,250 hours from December of 2021 to present. If they have worked that much (which would be unlikely), then they are eligible for the leave.
STEP 3
50 EMPLOYEES WITHIN A 75 MILE RADIUS
The employee must work at a site where 50 or more employees are employed within 75 miles of the worksite. In other words, if the individual works at a site with less than 50 employees, and there are less than 50 employees total within a 75 mile radius, then that employee is not covered. Let’s illustrate this:
Example: Employer A has 500 total employees. 450 of them work out of the NYC office. The other 50 employees are located at three different locations: (1) Austin, Texas [25 employees], (2) Seattle, Washington [15 employees], and (3) Miami, Florida [10 employees].
In this scenario, the employees in NYC are eligible for FMLA so long as they meet the hours and month requirement. The remaining employees in Texas, Washington and Florida are not eligible for FMLA leave, since they work at a worksite with less than 50 employees within a 75 mile radius.
FMLA is a statute and regulation driven law. There is little room for interpretation as the regulations provide much guidance. Prudent employers and HR professionals must stay on top of the regulations and updates as they arise.