Watch Out for These FMLA Eligibility Determination Missteps

​Employers often misunderstand the Family and Medical Leave Act's (FMLA's) definition of an employee who is eligible for FMLA leave, and they can't figure out when the worker has a qualifying reason for the time off. Here are some tips on making FMLA eligibility determinations in line with the law.

"Many businesses simply assume they have to offer their employees FMLA [time off], but that is simply not true," said Kelly Koster, an attorney with Munsch Hardt in Houston. "It is estimated that only about 50 percent of U.S. employees are covered by the FMLA."

FMLA eligibility requires the employee to meet a three-part test:

• Employment for 12 months.
• Working for 1,250 hours over the past 12 months.
• Employment at a worksite with 50 or more employees within a 75-mile radius (known as the 50/75 rule).

When checking FMLA eligibility, employers should be guided by two principles, said Jeff Nowak, an attorney with Littler in Chicago. First, the employer must check eligibility at the first instance of FMLA leave for each different qualifying reason in the employer's 12-month FMLA period. An eligible employee with a qualifying reason is entitled to 12 weeks of leave in a 12-month period. Employers may choose one of four different methods, including the popular rolling or look-back method, to calculate that period, so long as the method is applied consistently to all employees. Second, after eligibility is established for that particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

"At times, employers confuse these principles, assuming that they only need to check eligibility once per FMLA year," Nowak said. "This is not correct."

Employers also often fail to count service time and hours worked by temporary employees toward FMLA eligibility, he said.

Eligibility for Remote Workers

Be sure to calculate eligibility for remote employees carefully. When an employee is working from home, the employee's residence is not the FMLA worksite, said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass.

A telecommuter's worksite for FMLA eligibility purposes, including determining whether the 50/75 rule has been met, is the office to which the employee reports and from which they receive assignments, she noted.

Previous Periods of Employment

Employers sometimes overlook previous periods of employment when determining whether an employee satisfies the 12-month service requirement, said Jill Stricklin, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

"Unlike the hours-of-service requirement, the 12 months of service need not be consecutive," she said. "Months worked in previous periods of employment must be counted, unless there has been a break in service of more than seven years."

In some circumstances, such as a break related to an employee's military service obligations covered by the Uniformed Services Employment and Reemployment Rights Act, even employment periods preceding a seven-year interruption must be counted, she added.

Erroneous Designation of Leave

An erroneous designation of leave as being covered by the FMLA might create problems, should the employee later become eligible and request additional leave, Stricklin said.

An employer may choose to go beyond what the FMLA requires. However, "an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave," Nowak said.

Granting FMLA leave to someone who is not eligible sets a precedent. Employers should treat employees consistently to avoid discrimination claims, said Emma Redden, an attorney with Baker Donelson in Memphis, Tenn.

If a company designates leave as covered by the FMLA and the employee relies on that designation, the employer might be prevented from arguing ineligibility later, said Andrew Sherrod, an attorney with Hirschler in Richmond, Va.

Train Managers

Failure to recognize when FMLA leave may apply is common.

"An employee may make a vague mention of needing to be off work or needing to work remotely for a health-related condition," Redden said. "If this comment is made to a supervisor, the supervisor needs to know to tell the employee to contact HR to discuss potential FMLA leave or other accommodations." Then the supervisor needs to follow up with HR.

Such issue spotting often arises when an employee is caring for a covered family member with a serious health condition. Or, there may be a mental-health-related issue rising to the level of a serious health condition.

Is There a Serious Health Condition?

Employers should not assume that every impairment or illness is a serious health condition that qualifies for FMLA coverage, Sherrod noted.

To be a qualifying reason for FMLA time off, the condition must require either inpatient care or continuing treatment by a health care provider, he said. "Even a bad stretch of flu or similar illness that might keep an employee out of work for several days would not qualify if it doesn't meet those criteria," he said.

In some circumstances, employers can get medical certification from employees to assess whether employees have a qualifying reason for FMLA leave. An employer also may get medical certification of a covered family member's serious health condition when an employee is requesting FMLA leave to care for the family member.

Employers may not request a medical certification for FMLA leave to bond with a newborn, adopted or foster child. Employers may require employees to provide reasonable documentation of a family relationship, according to the U.S. Department of Labor. To satisfy this requirement, an employee may provide the employer with a simple written statement or provide the employer with a copy of an official document, such as a child's birth certificate or a court document, for review and return to the employee.

"HR should also keep in mind that this process can be incredibly stressful for the employee," said Shira Blank, an attorney with Epstein Becker Green in New York City.

"The way that HR interacts with the employee in response to a request for FMLA leave could result in the employee determining whether they wish to bring a claim," she added. So, HR should ask only for the information that it really needs, Blank recommended.

Finally, remember that leave under the Americans with Disabilities Act might be required even if someone isn't entitled to FMLA leave, Redden said.