12 months – What this number means for employees to be eligible for FMLA leave
Determining employee eligibility under the federal Family and Medical Leave Act (FMLA) should be a piece of cake. There are three basic ingredients (er, criteria) to qualify.
An employee needs to:
- Have worked for the company for at least 12 months,
- Have worked at least 1,250 hours in the 12 months before leave is to begin, and
- Work at a site with at least 50 company employees within 75 miles.
The first criteria — working 12 months — is one of the easiest to calculate. But there are a few aspects that can confuse employers.
Does the 12 months have to be consecutive?
The 12 months that an employee works for an employer doesn’t need to be consecutive to qualify for FMLA leave.
For example, let’s say an employee works for Company A for six months and leaves to take a job at Company B. After realizing the grass isn’t always greener, the employee comes back to Company A, and, after working six months requests FMLA leave.
The employee in this example meets the first eligibility criterion. If the employee meets the other two as well, the employee would be eligible to take FMLA leave.
Break in service
If there is a break in employment of seven years or more, an employer doesn’t have to tally all an employee’s work time toward that 12-months worked minimum.
So, using the same example, if the employee left for Company B and 10 years goes by before returning, Company A wouldn’t need to count the employee’s previous work time toward the 12-months worked requirement.
Are there exceptions?
There are some exceptions when it comes to a break in employment of seven years or more. That time must be included in the 12-months worked when:
- The break in employment was due to the employee serving in the National Guard or Reserve military obligations.
- A written agreement, such as a collective bargaining agreement, concerning the employer’s intention to rehire the employee after the break in service exists.
There is one other caveat about the timing when an employee hits that 12-month marker. If an employee is off work when they cross the 12-month threshold, the time prior to that date isn’t counted as FMLA leave. The time going forward, however, could be (based on eligibility, qualifying reasons, etc.).
Employment doesn’t mean actively working
An employee doesn’t need to be actively working during the 12 months, as long as the employee is maintained on a company’s payroll. This includes any paid or unpaid leave (such as sick or vacation time). An employee’s total employment counts toward the 12-month eligibility criterion.
If, for example, a pregnant employee who has worked for a company 11 months has a baby, the employee wouldn’t be on FMLA leave initially, but would likely become eligible once hitting that 12 months worked threshold while on leave.
Key to remember: Employees don’t have to work a consecutive 12 months to meet the eligibility requirements for that prong of the FMLA criteria. There are certain exceptions.
