Employee Eligibility
Employees who have worked at least 1,250 hours in a twelve-month period are eligible for FMLA leave. These 1,250 hours of service are based on federal FLSA principles for determining compensable hours of work. Therefore, paid time off for vacation, holidays, or sick leave may be calculated into the hours. Time spent on a paid or unpaid leave of absence may not count. State provisions may apply.
The twelve-month period may be a fixed one, such as a calendar, fiscal, or anniversary year, or a rolling one. However, your state may dictate which twelve-month period you have to use. If you have the option to choose and make a change, give employees a written sixty-day notice before the effective date of the new twelve-month period measurement.
A rolling twelve-month period is determined by going forward after an employee has taken any FMLA leave. Therefore, if an employee started FMLA leave on March 1 and returned on June 1, he would not be able to start FMLA leave again until June 1 of the following year.
Unclear Eligibility Issues
The criteria for employee eligibility can have a few challenges. Determining if there are seventy-five employees within a fifty-mile radius can be tricky. For example, if a salesperson works out of a small office with a support staff of three people in Austin, Texas, but reports to a supervisor at the corporate office in Detroit, Michigan where 600 people work, is he eligible for FMLA? He is one of four people at the office in Austin and the closest other office is in Detroit, but it is over fifty miles away. Is he employed out of the Detroit office where his supervisor assigns his duties or his Austin office? If his employer considers him to be employed in the Austin office, he would not be eligible for FMLA. But is this the case? His employer would need to find the answer.
The 1,250 hour requirement isn't always as clear as it may seem. Generally, the employee must work at least 1,250 hours in a twelve-month period, but is working 1,250 hours considered actually performing duties, or being paid? Therefore, if an employee is paid sick leave or holiday pay during the twelve-month period, do these hours count? If an employee is full time, they will have long surpassed 1,250 hours of service in a twelve-month period. But when the timing is close, an employee can challenge eligibility and in some states, rulings have concluded that employees are eligible when the employer felt otherwise. These are just examples of some things to think about and look into if you are not sure if an employee is eligible.
Although the FMLA is a federal law, there are some state statutes that overrule because they are more generous to the employee. Check with your state labor board about the FMLA compliance rules in your state. In addition, there may be state disability laws that run concurrently with FMLA, and ones that extend afterward, such as PDL and CFRA in the state of California.
Two Employees in the Same Household
In most states, two married employees with the same employer cannot take FMLA leave at the same time. In this case, if one employee is out on FMLA leave for his own serious illness, his wife (if also an employee at the same company) may not be able to take FMLA leave to take care of him. This can cause hardship for a family, so check into the laws in your state carefully before you deny FMLA leave to the employee who is the spouse. Although you may not be required to grant FMLA leave to both of them at the same time, you may have the option to do so if you choose. In some states, two married employees can take FMLA leave at the same time, but have to split the twelve weeks between the two of them.
If two employees have a baby together or have a biological child who is seriously ill, only one of them may be able to take leave at a time. If there is a critically ill or injured child in the family, it is unlikely that either parent will be in an emotional state to work. As mentioned above, contact your state labor board and find out if you can grant FMLA leave to both parents.
Covered Family Members
Employees may take FMLA leave during the serious illness of qualified family members, of which there are three: spouse, child, or parent. In the approximately fifteen states that acknowledge common-law marriage, a common-law spouse is a qualified family member for FMLA purposes. Unmarried domestic partners are usually not qualified, but registered domestic partners may be covered in some states.
A covered child is a biological or adopted child, or a foster child who was placed in the home by the state. A foster child transferred to the home through a private arrangement does not qualify. However, a child placed in the home through a private adoption does qualify.
What is considered a serious illness for FMLA purposes?
A serious illness is one in which a person cannot work or requires the care of another person. The illness must be recognized as such by a health care provider who fills out a Form WH 380, Certification of Health Care Provider. This form is explained in more detail further in this chapter.
In order for a parent to be a covered family member under FMLA, the person must be the employee's biological, adopted, or stepparent. In-laws are not covered. If the employee was adopted by a grandparent or other relative, the relationship counts as an adopted parent.
