March 2023 Newsletter


Employers often misunderstand the Family and Medical Leave Act's (FMLA's) definition of an employee who is eligible for FMLA leave, and they can't figure out when the worker has a qualifying reason for the time off. Here are some tips on making FMLA eligibility determinations in line with the law.

Often, businesses assume they have to offer their employees FMLA time off; however, it is estimated that only about 50 percent of U.S. employees are covered by the FMLA.

FMLA eligibility requires the employee to meet a three-part test:

  • Employment for 12 months.
  • Working for 1,250 hours over the past 12 months.
  • Employment at a worksite with 50 or more employees within a 75-mile radius (known as the 50/75 rule).

When checking FMLA eligibility, employers should be guided by two principles:

  1. The employer must check eligibility at the first instance of FMLA leave for each different qualifying reason in the employer's 12-month FMLA period. An eligible employee with a qualifying reason is entitled to 12 weeks of leave in a 12-month period. Employers may choose one of four different methods to calculate that period, so long as the method is applied consistently to all employees.
  2. After eligibility is established for that particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

Employers often confuse these principles, assuming that they only need to check eligibility once per FMLA year, which is incorrect.  Employers also fail to count service time and hours worked by temporary employees toward FMLA eligibility.

Eligibility for Remote Workers

Employers should make sure to calculate eligibility for remote employees carefully. When an employee is working from home, the employee's residence is not the FMLA worksite.  A telecommuter's worksite for FMLA eligibility purposes, including determining whether the 50/75 rule has been met, is the office to which the employee reports and from which they receive assignments.

Previous Periods of Employment 

Employers sometimes overlook previous periods of employment when determining whether an employee satisfies the 12-month service requirement.  Unlike the hours-of-service requirement, the 12 months of service need not be consecutive.  Months worked in previous periods of employment must be counted, unless there has been a break in service of more than seven years.

Erroneous Designation of Leave

An erroneous designation of leave as being covered by the FMLA may create problems, should the employee later become eligible and request additional leave.  An employer may choose to go beyond what the FMLA requires; however, an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave.

Granting FMLA leave to someone who is not eligible sets a precedent. Employers should treat employees consistently to avoid discrimination claims.

Train Managers 

Failure to recognize when FMLA leave may apply is common.  An employee may make a vague mention of needing to be off work or needing to work remotely for a health-related condition.  If this comment is made to a supervisor, the supervisor needs to know to tell the employee to contact HR to discuss potential FMLA leave or other accommodations. Then the supervisor needs to follow up with HR.

Is There a Serious Health Condition?

Employers should not assume that every impairment or illness is a serious health condition that qualifies for FMLA coverage.  To be a qualifying reason for FMLA time off, the condition must require either inpatient care or continuing treatment by a health care provider.  Even a bad stretch of flu or similar illness that might keep an employee out of work for several days would not qualify if it doesn't meet those criteria.

In some circumstances, employers can get medical certification from employees to assess whether employees have a qualifying reason for FMLA leave. An employer also may get medical certification of a covered family member's serious health condition when an employee is requesting FMLA leave to care for the family member.

Employers may not request a medical certification for FMLA leave to bond with a newborn, adopted or foster child. Employers may require employees to provide reasonable documentation of a family relationship, according to the DOL. To satisfy this requirement, an employee may provide the employer with a simple written statement or provide the employer with a copy of an official document, such as a child's birth certificate or a court document, for review and return to the employee.

Finally, remember that leave under the Americans with Disabilities Act might be required even if someone isn't entitled to FMLA leave.

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