FMLA leave before being eligible for FMLA leave

October 24th, 2018 by Thomas E. Reddin and Henry J. Thomas at Polsinelli

This blog was written by Thomas E. Reddin and Henry J. Thomas at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.


Navigating FMLA: May An Employee Be Entitled to Leave Beyond 12 Weeks?

By: Thomas E. Reddin and Henry J. Thomas

In certain circumstances, an employee may begin a leave of absence prior to being eligible to take leave pursuant to the Family and Medical Leave Act (“FMLA”). What if, during the employee’s leave, she subsequently reaches her FMLA eligibility date? Does the employer have to offer FMLA to the employee – who was not eligible for FMLA at the start of her medical leave – when she reaches the 12-month, 1,250-hour requirement while out on leave? 

Before addressing that specific question, it is helpful to review the FMLA’s basic framework.

Basic Framework:

The FMLA is a federal law requiring covered employers to provide eligible employees with job-protected, unpaid leave for certain qualified medical and family reasons, including, but not limited to, family illness, pregnancy, military family leave, and adoption. Employers are required to maintain health benefits for employees taking FMLA leave during the covered leave period and are prohibited from retaliating against an employee for exercising FMLA rights. 

Under the FMLA, eligible employees are entitled to up to 12 weeks of leave. To be eligible for leave under the FMLA:

  • An employee must have been employed with the employer for 12 months;
  • The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave; and
  • The employer has employed 50 or more employees within a 75-mile radius of the worksite.

When an employee’s eligibility is triggered:

It isn't always easy to determine when an employee’s eligibility commences. For instance, Covered Employer hires Employee on May 1, 2017, and Employee works a full-time schedule. Employee requests leave pursuant to the FMLA for a serious health condition beginning on April 1, 2018, when she has worked more than 1,250 hours, but not yet worked a full 12 months for Covered Employer. Covered Employer has a policy that provides up to six weeks of non-FMLA leave for employees with serious health conditions. Per the Covered Employer’s leave policy, the Employee’s leave is approved to start on April 1, 2018, for the full six weeks, which continues beyond May 1, 2018. Is the employee entitled to an additional 12 weeks of FMLA-protected leave once she becomes eligible for FMLA leave on May 1, 2018?

Simply, yes. Under the FMLA, the determination of whether an employee has met the hours of service requirement and has been employed by the employer for a total of at least 12 months is made as of the date the FMLA leave is to start.  Per the FMLA, an employee can be on non-FMLA leave when she satisfies the 12-month eligibility requirement, and, in that event, “any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave." 

Stated another way, an employer’s policies and/or practices determine whether to grant non-FMLA leave for an employee who is not yet eligible for FMLA leave (unless there is an applicable state family or medical leave law). But once an employee becomes eligible for FMLA leave, an employer may not count any non-FMLA leave taken prior to the employee’s eligibility date toward the employee’s guaranteed 12 weeks of FMLA leave. 

Thus, in the example above, Employee is eligible for up to 12 additional weeks of FMLA leave as of May 1, 2018 (the eligibility date).  Accordingly, Employee could potentially take leave for up to 16 weeks, which consists of four weeks of leave prior to her FMLA eligibility in April 2018, and up to an additional 12 weeks of FMLA leave beginning May 1, 2018.

The application of FMLA to real-life situations can be very complicated.  It is prudent to consult with your employment attorneys when making FMLA-related decisions.  Stay tuned to this blog for further clarification of the FMLA and other employment-related laws.

Can't find what you're looking for?

Sign up for free to gain access to our complete HR Library

Related posts

"Moms in the Workplace" quiz!

"Moms in the Workplace" quiz! And dads get to play, too. After all, we wouldn't be moms without you!   ;-) Happy Mother's Day weekend! How much do you know about moms in the workplace? Take our quiz and find out! As always, the answers appear at the end of each question, so you can cheat...

FMLA - speak clearly and carefully and explicitly

Be VERY CLEAR In Your Communications About FMLA! I often tell my crazy teenagers that it doesn’t matter what you mean to say – it matters what the other person actually hears. (I’m not sure they actually hear me when I say that…) And a recent Family and Medical Leave Act case proves my point a...

Better parental leave or you better believe parents leave

It’s Time To Be Creative: Historically Low Unemployment Rates Fuel New Approaches To Parental Leave In October 2018, NPR reported that the U.S. unemployment rate had dropped to 3.7 percent, the lowest rate in 50 years.  In some states, like Colorado, where I live, the rate is even lower (3.1 p...

Why You Should Care About Employment Law

Common Pitfalls for Emerging Companies Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, th...

Employers beware - what you say can and will be used against you

This blog was written by Darryl McCallum at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website.   Employers Beware: What You Say Can and Will Be Used Against You! Darryl McCallum Any H...

Holiday stew – ingredients for a happy and non-litigious holiday

Holiday stew – we all have our own recipe, but the base is almost always the same: booze, mistletoe and a generous pinch of unapproved time off. And be sure you don't have enough time to prepare or clean up. Join Gary Wheeler and Lori Mans for an hour as they provide the ingredients and know-h...

Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)

This blog was written by Deidra Nguyen at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Dear Littler (which is excellent) on their website.   Dear Littler: What is the Story with Employee Election Leave? Deidra...

Disability/pregnancy practices – what not to practice

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Employers,...

No call/no show shows. No what about it.

No call. No show. Assume they quit. Find a replacement. Move on. Then who shows up but Ms. Nocall Noshow. Now what? Depends on what happened, your policy, potential laws (ADA? FMLA?), disabilities, stuff, junk. SHRM helps, with help from our author Fisher Phillips and long-time friend...

Notice: notices and forms for FMLA that were already expired now updated virtually unchanged

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog and their Labor & Employment Report newsletter on their website.    Time to Update Those FMLA Forms!!! Fiona W. Ong Finally! The new Family and Medi...

School-related parental leave does not mean you forge a note from your kid

This blog was written by Jason Plowman at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Back to School Edition: School-...

Round up stew: sick leave, harassment, non-compete, etc.

This blog was written by Shennan Harris at Squire Patton Boggs. Shennan is a co-author of our Wages and Hours – An Employer's Guide. You can find the original blog post and their Employment Law Worldview on their website.   State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Othe...

PTO on the house!

Traditionally, most companies have offered a paid leave package to employees that differentiates between vacation, personal and sick days. However, combining all categories into a single paid time off (PTO) bank is a growing trend. A PTO model increases employee flexibility and has the potential ...

No FMLA for pet's death

This blog was written by Fiona Ong at Shawe Rosenthal, our author of the Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   In a previous post about pet bereavement leave, I noted that t...

FMLA definitions

This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state. FMLA coverage for employers ...

FMLA - "leave" as in "leave the employee alone"

FMLA contains "leave", as in "the employee isn't at work" but also as in "leave the employee alone or else". See what the boundaries are to avoid the "or else" from one of our authors @Ogletree Deakins.

Paternity leave

What is paternity leave? Sometimes referred to as “family leave” or “parental leave”, paternity leave is an excused absence from work to care for and bond with a new child - whether by birth, adoption, or foster. This leave can vary in duration and may be paid or unpaid. Are employers requi...

Paid family leave: a growing trend

Legally mandated family leave policies have a relatively short history in the United States, and a requirement that the leave be paid is even shorter. In 1993, Congress enacted the Family and Medical Leave Act (FMLA) after finding that employees were having to choose between working and taking ca...