Not just anyone has the right to the notable protections of the FMLA. To be eligible to take FMLA-protected leave, employees need to meet certain criteria. Therefore, one of the first tasks an FMLA administrator has after learning that an employee needs leave, is determining whether or not the employee in question meets three criteria, but details must be considered.
Employees are eligible to take FMLA leave if they:
Have worked for the company for at least 12 months.
- Those 12 months need not be consecutive.
- Employers need not consider months worked before a break in service of more than seven years unless the break was for military duty or under an agreement or collective bargaining agreement.
- An employee might be on non-FMLA leave when the 12-month threshold is met. In that situation, any leave taken after the threshold was met would be FMLA leave (assuming the employee meets the other criteria).
Worked at least 1,250 hours in the 12 months before leave is to begin.
- Only hours actually worked are included in the 1,250 hours; no need to count vacation, PTO, or other forms of leave.
- Part-time employees might meet this criterion and, therefore, be eligible for FMLA leave.
- If records of hours worked are not kept, such as for exempt employees, the employer would have the burden of showing that a particular employee has not worked the requisite hours. Neither the FMLA nor the Fair Labor Standards Act prohibit employers from keeping such records of exempt employees.
Work at a site with at least 50 company employees within 75 miles.
- The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave works.
- Employees’ private residences are not worksites for purposes of the FMLA. Their worksites are the offices to which they report or from where assignments are made.
Once all three criteria are met, employees are eligible to take FMLA up to 12 weeks of leave in a 12-month leave year period for a qualifying reason.
Also, once the eligibility criteria are met, employees remain eligible for the duration of the 12-month leave year period. Eligibility may be recalculated at the time of the first absence for the condition after the conclusion of the 12-month leave year period.