FMLA leave continues to be one of the most confounding HR issues for employers. The first issue you often face is whether an employee seeking leave is eligible for the leave sought.
To be eligible for FMLA leave, an employee must meet two criteria:
The employee must have been employed for at least 12 months. These months, however, do not have to be consecutive and do not even have to immediately precede the request for FMLA leave. As long the employee has worked for the employer for a total of 12 months over any duration of time, this criteria is met.
The employee must have at least 1,250 hours of service during the previous 12-month period. “Hours of service” means hours worked. Thus, non-working time, paid or unpaid, such as vacations, holidays, furloughs, sick leave, other FMLA leave, and other time-off, do not count in the calculation of hours of service. This rule, however, has two key exceptions. First, an employee returning from fulfilling his or her National Guard or Reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the required 1,250 hours. Secondly, time that an employee would have worked but for an unlawful termination also counts towards the required 1,250 hours.
Because of these eligibility requirements, it is important to keep accurate records of work hours, even for exempt employees. If an employer does not keep an accurate record of hours worked, it will be presumed that the employee worked enough hours.