To get really technical about it, there a difference between an FMLA eligible employee and an employee with an FMLA qualifying circumstance. The federal Family & Medical Leave Act (FMLA) generally allows eligible employees to take up to 12 weeks of unpaid leave each year related to the birth or adoption of a child, serious health conditions, and certain family-member military-related situations. But not all employees in these covered situations are protected by the law in the first place.
So, let’s take a look at the requirements for being FMLA eligible.
[The FMLA differs from state laws, such as New York’s Paid Family Leave Benefits Law. New York employers can click here to contrast the two.]
Work For a Covered Employer
In many respects, FMLA eligibility is beyond an employee’s control. This primarily comes down to the size of a company’s workforce. Private sector (non-governmental) employers with less than 50 employees are not subject to the FMLA. Their employees have no leave rights under the law.
The FMLA covers all public agencies, including federal, state, and local governments, and schools even if they have fewer than 50 employees. However, that doesn’t change the eligibility for employees working for governmental employers under that workforce threshold . . . because of the next requirement.
Work within a 75-Mile Radius of 50+ Employees
To be FMLA eligible, an employee must work at a location where their employer has at least 50 total employees working within a 75-mile radius.
Sometimes this is an easy requirement to measure. Many companies have more than 50 employees working at the same location. If you don’t, however, you might need to get out a map (probably digital these days) to check whether employees are FMLA eligible.
And how do you measure those 75 miles? Here’s what the Department of Labor’s regulations have to say about that:
“The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).”
There are other potential complexities. Some employees have no fixed work location. Then, per the regulations, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”
Have Worked for the Employer for at Least 12 Months
Even in large workplaces, employees don’t become FMLA eligible their first day on the job. Not even the first month . . . or the first year. Instead, they must remain employed for at least 12 months before earning FMLA protections.
However, the 12 months don’t have to be consecutive. Time off, or even formal termination of employment, doesn’t restart the clock. An employee with a year or more of service who quits but then returns to the company later might satisfy this requirement on their first day back. And an employee who first worked less than 12 months before leaving and returning can count the previous period of employment. Except . . . if the break in employment lasted at least 7 years, then prior employment doesn’t count (barring special circumstances).
But gaps in employment will often still affect FMLA eligibility, because an employee must . . . .
Have Worked for the Employer for at Least 1,250 Hours in the Past Year
This requirement means that many part-time employees are not FMLA eligible. It also limits the initial eligibility of employees returning to a company after a break in employment.
The hours requirement looks backward from the date leave begins. In other words, on the day the leave will start, has the employee worked 1,250 hours in the past 12 months. If not, they are not FMLA eligible. However, such employees might be able to delay the leave (assuming a non-emergency situation) until they will have worked enough to become eligible.
Sometimes this eligibility condition prevents employees from taking FMLA leave in consecutive years. Previous time off (under the FMLA or otherwise) might mean that even when an employee would otherwise regain annual FMLA leave time, they will no longer (at least initially) be eligible to use it.
Understanding Which Employees Are FMLA Eligible
If your company is subject to the FMLA, then you must be prepared to evaluate whether a particular employee is FMLA eligible.
Employees don’t have to use any magic words in requesting leave under the FMLA. Asking for time off for a reason that would qualify for leave (e.g., childbirth, surgery, etc.) is usually sufficient to shift the burden to the employer to follow the FMLA. This includes determining whether the employee is FMLA eligible and notifying the employee of their eligibility and rights.
Employers with limited experience applying the FMLA or those facing less-than-straightforward scenarios should consider consulting with an experienced employment lawyer on questions of employee eligibility and other legal parameters.
To receive updates about employment law topics of interest to employers and notification of our free webinar trainings, click here to sign up for the Horton Law email newsletter.
