If an employee was not eligible for FMLA at the start of his or her medical leave but reaches the 12-month, 1,250-hour requirement while out on leave, do we have to offer FMLA?

November 17, 2020

Yes. According to the FMLA regulations, "The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave."

Unless there is an applicable state family or medical leave law, granting non-FMLA leave is based upon the company's policies and practices when the employee is not yet eligible for federal FMLA. The employee's FMLA rights are triggered as of the date of FMLA eligibility. The employer cannot designate any of the leave time taken prior to employee's FMLA eligibility toward the 12 weeks of FMLA leave. This means the employee is eligible for 12 weeks of FMLA leave in addition to leave taken prior to the employee becoming FMLA-eligible.

For example, an employee was hired on March 1, 2016, and works a full-time schedule. The employee requests FMLA for maternity leave beginning on February 1, 2017. The employee has worked more than 1,250 hours but has not yet worked a full 12 months for the organization. The company has a policy that provides up to six weeks of non-FMLA maternity leave for pregnant employees. The employee's leave is approved to start on February 1, 2017, under the company maternity leave policy for the full six weeks (which extends beyond March 1). As of March 1, 2017, the employee is eligible for up to 12 additional weeks of leave under FMLA. In this situation, the employee could potentially take leave for up to 16 weeks (four weeks of leave taken prior to FMLA eligibility in February plus 12 weeks of FMLA starting March 1st). 



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