FMLA Basics: Which employees are eligible to take leave? And are there any exceptions?


The Family and Medical Leave Act allows eligible employees to take up to 12 workweeks of unpaid leave in a 12-month period for a variety of reasons, including for one’s own serious health condition. An employee with a serious health condition can take FMLA leave if the employee satisfies three additional requirements:

  1. The employee has worked for his/her employer for at least 12 months,
  2. The employee has worked at least 1,250 hours over the previous 12 months, and
  3. The employee works at a location where at least 50 employees are employed by the employer within 75 miles.

However, under the FMLA, an employer may relax the eligibility requirements. For example, as I’ve posted before, an employer that omits one of the three criteria listed above in its FMLA policy may have waived that requirement.

But, even in those situations where an an FMLA policy relaxes the FMLA eligibility requirements, an employee’s claim that his employer denied him FMLA leave under the policy could fail. How? According to this recent PA federal court decision, where the employee fails to read the policy, he may not be able to claim later on that he was denied rights under the FMLA. The rationale here, well, I’ll let the court explain:

Inovio contends that Palan “admits he never even read Inovio’s Handbook thereby making it an absolute impossibility that he relied on it at all, let alone to his detriment.” Palan can point to no action or statement that indicated that his decision to have the surgery was contingent on his understanding of his FMLA status….The record shows that Palan would have taken leave regardless, and he cannot show that he “relied” on any misrepresentation of Inovio to his detriment in deciding to take a leave of absence.

So, should you forego an FMLA policy altogether if you have fewer than 50 employees working within 75 miles of one another? I suppose you could. But, I prefer an FMLA policy setting forth the three eligibility requirements. Plus, make sure that it references and explains the 50/20 rule. That is, just because you have 50 employees doesn’t mean that you are a covered employer under the FMLA. Rather, you need to have 50 or more employees for 20 workweeks in either the current or preceding calendar year. (Conversely, if you meet the 50/20 rule and drop below 50 employees, you’re still covered under the FMLA until you no longer have 50 employees in 20 workweeks over the current or preceding calendar year).

Now, forget about the FMLA, fire up the BBQ, and grill yourself a hotdog. (But, don’t you dare put ketchup on it, or we can’t be friends).
Have a nice Labor Day. I’ll be back on Tuesday.
“Doing What’s Right – Not Just What’s Legal”
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