HR Basics: Which Employees Are Eligible to Take FMLA Leave?

By Eric B. Meyer

The Family and Medical Leave Act allows eligible employees to take up to 12 weeks 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:

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

Employers may relax FMLA requirements

However, under the FMLA, an employer may relax the eligibility requirements. For example, as I’ve written 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 Pennsylvania 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.”

Navigating the 50/20 rule

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.

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Rather, you need to have 50 or more employees for 20 weeks 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 weeks over the current or preceding calendar year).

Now, forget about the FMLA, fire up the BBQ, and grill yourself a hot dog. (But, don’t you dare put ketchup on it, or we can’t be friends).

Have a nice Labor Day.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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