My employee’s already on leave, when does FMLA leave start?

01/08/2020

We’re not sure if there’s something in the air, but we’ve been getting a number of clients asking what happens when an employee, who has not yet worked for the company for 12 months but is already on leave, does finally meet the 12-month threshold. To set the stage, an employee is eligible for FMLA leave if he or she meets the following criteria:

  • Worked for the company for at least 12 months,
  • Worked at least 1,250 hours in the 12 months before leave is to begin, and 
  • Works at a location with at least 50 company employees within 75 miles. 

Focusing only on those 12 months, they need not be consecutive, and an employee need not be actually working during all 12 months. Generally, if an employee is on your payroll, even if not working, you would count all that time.

An employee may be on non-FMLA leave when he or she meets the 12-month eligibility criterion. In such a situation, any leave taken after the employee hits the 12-month threshold would be FMLA leave.

This could result in an employee having more than 12 weeks of leave total. If, for example, Joe Employee began leave on March 9, but would not meet his 12-month threshold until April 20 (six weeks), he could have 12 weeks of FMLA leave on top of the six weeks of non-FMLA leave from March 9 to April 20.

You may not count the six weeks of non-FMLA leave as FMLA leave, as Joe had not yet been eligible for FMLA leave at that time. Only after he meets the eligibility criteria may you count the time off as FMLA leave.

The 12 months also need not be consecutive. If, for example, Joe Employee worked for you for five months, left for greener pastures, then returned a couple years later and worked for eight months, if he requested leave, he would meet the 12-month eligibility criteria. You would add the five months and the eight months together. You need not, however, count time worked before a break in service of seven or more years.

Whatever might be the impetus for the influx of questions regarding the 12-month eligibility criterion, we’re up to the challenge, so ask away!

Key to remember: An employee’s meeting the 12-month FMLA eligibility criterion can mark the beginning of FMLA leave

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

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The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.