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Don’t Get Blindsided by FMLA Eligibility Guidelines

Lately, we’ve been chatting with several HR generalists who suddenly find themselves responsible for their organization’s absence management. Whether it’s a team member taking on a new role or a staffing reduction, let’s face it, sometimes you’re left holding the bag. But luckily, when it comes to absence management, it’s a designer bag because there’s a lot you can do to proactively manage absence and make significant contributions to your organization’s bottom line.

But keep in mind that there’s a lot of moving parts with absence management, especially with FMLA leave. Let’s review the basics so you don’t get blindsided by FMLA guidelines. (Side note – pass this along to your managers as well so they are in the loop.)

Your organization, if a private employer, is required to provide FMLA leave to those employees at locations with 50 or more employees within 75 miles. Other employees working at employer locales not within these parameters are not eligible for FMLA. Do you have employees that have no fixed work site or work from home? They count as employees at the location to which they are assigned or from which their work assignments are made. Does your total employee count hover near the total of 50? Once you employ 50 or more employees for at least 20 workweeks in the preceding or current calendar year, you are a covered employer.

Furthermore, don’t fool yourself into thinking, that as the employer, you can decide to provide FMLA leave to ineligible employees. It’s not a decision employers make; FMLA eligibility rules are not employer-modifiable. If you are tracking leave time as FMLA leave for such employees, what you are providing is not FMLA but company leave. Is there a risk? Most definitely! If one of these employees begins working at a location with 50 or more employees, they then become eligible for FMLA and are entitled to a full amount of time.

Additionally, if you are a government agency, or public or private elementary or secondary school, all employees are protected.

Employees qualify for FMLA leave if -

  • They have worked for you any accumulation of 12 months in the last seven years. (Time prior to the last seven years also counts if either USERRA or other written agreements apply indicating the employer’s intent to rehire.)
  • In the last 12 months they have worked 1,250 hours

And at least one of the following is true:

  • They have a serious health condition
  • They need to care for their spouse, son, daughter or parent that has a serious health condition
  • The birth, adoption, or foster care placement of a child
  • If a family member (spouse, son, daughter, or parent) is in the military and you have to attend to family logistics to arrange for that person leaving for active duty or care for a covered servicemember who is determined to have a serious illness or injury.

If they are part of an airline crew, that’s a different set of eligibility parameters and tracking guidelines that you can find here. If you are uncertain about what qualifies as a serious health condition, the DOL has a definition here.

In addition to providing job protected leave, you are required to maintain the employee’s health insurance. If needed, the employee has to pay their portion of the health insurance premiums.

When the employee returns to work, they must return to their original position or equivalent. No adverse action or discrimination can be taken toward them for taking leave. Any seniority or other benefits remain intact. Also, don’t forget that requesting more leave could be an accommodation under the ADA, so always manage absence with the ADA in mind.

There’s a lot of moving pieces to the FMLA. If you are looking for a system to keep everything straight, check out our free 30 day trial of LeaveXpert.

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