An eligible employee of a covered employer is entitled to family or medical leave under the FMLA. An employee's eligibility depends on the number of employees the employer has at a given worksite and the hours worked. Entitlement of the eligible employee is based on the type of event that precedes such leave.
Eligible employees
To be eligible for FMLA benefits, an employee must:
work for a covered employer;
have worked for the employer for at least 12 months;
have worked at least 1,250 hours over the previous 12 months; and
work at a location in the U.S. (or in any U.S. territory or possession) where the employer employs at least 50 employees within a 75-mile radius.
How are months and hours counted? The 12 months' total employment does not necessarily mean 12 consecutive months of employment-it can be separated by a break in service of up to seven years (longer if the break in service (1) was to fulfill a National Guard or Reserve military service obligation or (2) there is a written agreement to rehire the employee after the break in service).
For occasional employees, 52 weeks is considered 12 months, and if an employee is maintained on the payroll for any part of a week, the week counts as a week of employment. Periods of paid or unpaid leave (such as for sick days and vacation) count for this purpose.
If an employer does not keep records on an employee's hours (documenting that the employee worked fewer than 1,250 hours), the employee is presumed to have met the 1,250-hour requirement. Salaried employees and full-time teachers are presumed to have met the hours worked test.
At what point must the employee have the required time on the job? The determination of whether or not an employee has worked for the employer for at least 1,250 hours in the past 12 months and has met the 12-month rule must be made as of the date leave commences.
What if an employee asks for leave before meeting the eligibility requirements? If an employee asks for leave before the employee meets the eligibility rules, the employer must analyze the employee's eligibility as of the time leave is to begin. The employer must either confirm the employee's eligibility or advise the employee when the eligibility requirements are met. If the employer, on the basis of that projection, says the leave is FMLA leave, it cannot go back later and challenge the employee's eligibility.
How are employees counted? The determination of how many employees are employed within 75 miles of an employee's worksite is based upon the number of employees maintained on the payroll. All employees, including part-timers and seasonal employees, are counted.
Eligibility is determined at the time a request for leave is made and subsequent changes in the number of employees at or within 75 miles of the employee's worksite do not change the employee's eligibility. For example, if a company employs 60 people in August when an employee requests leave for December, but only 40 employees are employed in December, the leave must be granted (assuming the other rules are met).
An employee's worksite under the FMLA is ordinarily the site the employee reports to or, if none (as with employees who work out of their home), the place from which the employee's work is assigned. Separate buildings or areas that are not directly connected (for example, buildings in an industrial park) are a single worksite if they are in reasonable geographical proximity, are used for the same purpose, and share the same staff and equipment.
The worksite of a jointly employed employee is the primary employer’s office from which the employee is assigned or reports. A secondary employer’s worksite becomes the employee’s worksite after the employee has physically worked for at least one year at that facility.
The 75-mile radius within which 50 employees must be employed is measured by surface miles by the most direct route from the facility where the employee requesting leave is employed.
Special categories of employees
Teachers
The law provides different leave provisions for teachers.
Key employees
A key employee is a salaried, eligible employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite.
Although key employees have the same entitlement to leave as any other eligible employee, they are subject to limits on their rights to job restoration (see When can an FMLA-eligible employee be denied job restoration?
at ¶45,414
). An employer may deny job restoration to a key employee in order to prevent substantial and grievous economic injury to the employer's operations. The exemption applies only to an eligible employee's entitlement to restoration and does not affect other benefits, such as the continuation of health insurance.
Spouses with same employer
When a husband and wife both work for the same employer and are both entitled to FMLA leave, the time available to both spouses is combined. As a result, the number of weeks to which both spouses together are entitled is 12 weeks during any 12-month period for leave taken for the birth, adoption, or foster care of a child or to care for a sick parent.
Servicemember family leave. The number of weeks to which both spouses together are entitled is 26 weeks during any single 12-month period for leave taken to care for a servicemember with a serious injury or illness incurred in the line of duty on active duty. Both spouses are also limited to a total of 26 weeks in a single 12-month period for a combination of leave taken to care for an injured servicemember and all other FMLA leave.
Returning National Guard and reservists
Because the Uniformed Services Employment and Reemployment Rights Act entitles returning service members to all of the benefits of employment that they would have obtained if they had been continuously employed, employers should combine the hours that the employee would have worked but for military service with the months employed and hours actually worked to meet the 12-months and the 1250 hours of employment required for FMLA leave eligibility.
<p>An eligible employee of a covered employer is entitled to family or medical leave under the FMLA.</p>