This article will help to determine if an employee is eligible to receive employment protections from the Family Medical Leave Act (FMLA)
This article references The Employer's Guide to The Family and Medical Leave Act published by the Wage and Hour Division of the United States Department of Labor found here https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf
This determination is made when an employee requests FMLA Leave. Not before.
Once the request is made you would test both the employee and the company to see if the employee is eligible for FMLA Leave.
To test the employee, they must meet two criteria
- 1st criteria
- An employee must have 12 months of employment with the employer. The rule is that any week worked in the past 7 years is a week worked and 52 weeks equals 12 months. So if an employee has at least 52 weeks worked in 7 years then they pass the first criteria.
- 2nd criteria
- Don't confuse this with the 1st criteria, there are no gaps in employment to consider with this test. In the immediate past 12 months, prior to the start date of the requested FMLA the employee must have worked at least 1,250 hours.
- Simply look back to the same date in the prior year and add up their hours.
- Vacation and PTO are considered hours worked, so count the PTO, Vacation or Sick Leave hours as time worked.
- Don't confuse this with the 1st criteria, there are no gaps in employment to consider with this test. In the immediate past 12 months, prior to the start date of the requested FMLA the employee must have worked at least 1,250 hours.
To test the company
- Look at all employees who normally work within 75 miles of the location where the employee normally report.
- This is 75 miles by road, not as the crow flies.
- This is not the employee's home if they work from home. It is the office location from which they receive instruction and work direction.
- Test the current and also the past calendar years
- A calendar year is from January 1 to December 31st. If today's date is less than 20 weeks into the year, then only look at the prior year.
- For each week in each year, count the number of employees who worked. Again if they worked one minute or if they were on payroll for PTO, Vacation, Sick... then count the employee for that week.
- For each year find the top 20 weeks by count. Not consecutive weeks just the top 20 weeks by employee count.
- If either the current calendar year or the previous calendar year has at least 20 weeks with more than or equal to 50 employees within 75 miles of the employee requesting leave, then the company is subject to the FMLA.
If the employee meets the 2 criteria and the company is subject by the 75 mile test, then the employee meets the eligibility for FMLA Leave.
If the employee is not eligible for FMLA the the employer must not designate the leave as FMLA. The employer may still grant company leave under a company internal policy, but this must not be classified as FMLA Leave. The reason for this is the employee may later become eligible for FMLA Leave by earning more hours or working 52 weeks, and as such then they would qualify and the employee is eligible for up to 12 weeks of FMLA Leave and the leave the company granted simply as part of a company policy would not take away from the 12 weeks.
There is still a lot of rules to follow when it comes to FMLA besides eligibility. So please read The Employer's Guide to The Family and Medical Leave Act published by the Wage and Hour Division of the United States Department of Labor found here https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf It will provide many more details.