Archive for the 'FMLA' Category

Why? A Serious Health Condition under the FMLA – Part 6.

Yes, we are still talking about what a serious health condition is.  But now we are going to talk about a “regimen of continuing treatment.”

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, instead of the two treatments thing, we are going to discuss the “regimen of continuing treatment.”

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So just what is this “regimen of continuing treatment”?  Pretty simple actually:

* * *

A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

So it is prescription medication, or therapy or something you need the health care provider in order to get it, and not just drink plenty of fluids and take an aspirin.  Simple enough.

Next time, pregnancy.

Why? A Serious Health Condition under the FMLA – Part 5.

Back to a serious health condition and what it means.  As we always do, we will start out with a little refresher:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And of course we are talking about the continuing treatments part of that definition.  Remember, last time we left off with when the second of the two treatments have to take place.

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the second treatment has to take place within 30 days of the first day of incapacity.  I got sick on Monday the 1st.  Have to have two treatments by the 30th.  But who decides?  Do I just get to decide to go back to the doctor a second time and, voila, I have a serious health condition?  Nope, the doctor decides.

Continuing treatment by a health care provider means any one of the following:

* * *

(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

29 CFR §825.102.

OK, so the doctor decides.  But is it a serious health condition if the second treatment does not occur until after the employee is no longer sick?  Well, that might depend on where you live.  In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Court said the health condition must be sufficiently serious that it entails an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times.  But in Summerville v. Esco Company, 52 F. Supp. 2d 804 (W.D. Mich. 1999), the court held “Rather, the regulation by its plain language merely requires two or more treatments, without distinguishing between treatments occurring during or after the initial period of incapacity.”

Clear as mud, right?  I’m going with the Summerville Court, but I live and practice (mostly) in Michigan.  You might want to talk to your labor lawyer before you decide to tell an employee they are not covered by the FMLA because they did not have two treatments while they were sick.

Oh, and one more thing – that whole 30 day thing for the second doctor’s visit?  Does not apply if there are “extenuating circumstances.”  What is an extenuating circumstance?

(5) The term extenuating circumstances in paragraph (a)(1) of this section means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

29 CFR .§825.115(a)(5).

See you next time when we will talk about a “regimen of continuing treatment.”

 

Why? A Serious Health Condition under the FMLA – Part 4.

Yes, yes, I know we are still talking about “serious health condition” and we have been for the last several posts.  But this is important stuff.  Most of your FMLA leaves are going to be for a serious health condition, either the employee’s or a family member’s.  So this might take a post or two more.

Let’s refresh:

According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

So last time we talked about the “three consecutive days” thing.  You remember:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So we have that down, right?  A period of incapacity that lasts more than three consecutive days.  But that is not it.  The section also says:  “that also involves”.

So in addition to the three consecutive days, you need “continuing treatment by a health care provider”.

The Regulation gives you basically two different situations and says that means:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

Id.

Well, let’s break that down.  We will start with number 1, that makes sense.

You can have “treatment two or more times”.  OK, easy enough, you have to be treated by the “health care provider” at least twice.   Hold it, what does “treatment” mean?  Funny you should ask, because there is a definition:

Continuing treatment by a health care provider means any one of the following:

* * *

(iii) The requirement in paragraphs (i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.

29 CFR §825.102.

OK, so treatment means an in-person visit with a health care provider.  But it must also mean more than that, right?  Yes it does.  Treatment also means:

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

Man, we are all over these Regulations just to get to one definition.  So, treatment means an in-person visit with a health care provider “to determine if a serious health condition exists and evaluations of the condition”.

Now let’s touch on that two or more times thing.  First, as you can see, the “first in-person treatment visit must take place within seven days of the first day of incapacity.”  So I got sick on Monday, as a threshold issue I need to see the doctor within seven days of Monday.

OK, I think that is enough for today.  It’s enough for me anyway.  We will talk about that second visit next time.

Why? A Serious Health Condition under the FMLA – Part 3.

Remember how short the last post was?  Not this one.

So let’s go back.  According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Last time we talked about “inpatient care”.  This time we are going to talk about “continuing treatment”.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the first thing we need for a serious health condition involving “continuing treatment” is a period of incapacity and treatment lasting “more than three consecutive full calendar days”.  So we start with incapacity.  Remember incapacity?

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

And you didn’t even remind me.  So we have to have “incapacity”, which means the employee basically can’t do what they would normally do during the day, and it has to last for more than three consecutive, full calendar days.  A couple of things to point out there:

The incapacity has to last for “more than three consecutive days.”  Out sick Monday, Wednesday and Thursday does not count.  Not consecutive days.  Second thing you need to note is that it is “full calendar days”.  If the employee went home early on Friday, was still sick Saturday and Sunday and comes back to work Monday, that is not a serious health condition.  Not because of the Saturday and Sunday – if the employee can’t do his normal daily activities, those days count (remember, it is “calendar” not “work” days).  It does not count because that is not three “full” days.  The employee worked part of Friday, so he was clearly not incapacitated for the full day Friday.

We will get into this more next time.

Why? A Serious Health Condition under the FMLA – Part 2.

Boy, this post is going to be really short.  Remember last time when I told you that the definition of a serious health condition included:

. . . an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 . . . .

29 CFR §825.113(a).

Of course you remember.  So, what does “inpatient care” mean?  Simple:

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.

29 CFR §825.114.

If you stay overnight in a hospital, or a hospice or a residential care facility, that is inpatient care.

That’s it.  Now I could stop there, but what kind of a lawyer would I be if I made it that simple? So let’s ask a question – what is an “overnight stay”?  Do we start the clock when the employee gets to the hospital or when they are actually admitted?  How long does the employee need to stay in the hospital for it to be “overnight”?  Will midnight to 5 a.m. do it?  11 p.m. to 7 a.m.? Something else?

According to one court, the 3rd Circuit in Bonkowski v. Oberg Indus., 787 F.3d 190 (3rd Cir. 2015), an “overnight stay” is one that lasts from one day to the next and lasts at least eight hours, as measured by the patient’s admission and discharge from the hospital.  Got that, starts in one day and ends in the next (or the one after that and so on) and is at least eight hours long.  Where do they come up with this stuff?  Beats me.

Why? A Serious Health Condition under the FMLA – Part 1.

Given what we covered last time, it should come as no surprise to any of you that we are now going to dig into the reasons for leave a bit.  What we should do is start with the birth of a child, but we are not going to.  Why, you ask?  I will tell you . . . because that is not the order the DOL wrote the regulations.  They start with serious health condition, so we will too.

So as you will recall, an eligible employee of a covered employer is entitled to take FMLA leave if the employee has a serious health condition or if the employee needs to care for a spouse, child or parent with a serious health condition.  That begs the question: What is a serious health condition?

According to the regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Ok, so a serious health condition is an “illness, injury, impairment or physical or mental condition.”  That is part 1.  And it involves either “inpatient care” or “continuing treatment” by a “health care provider.”   That is part 2.

So before we get to the definition of those terms, as we will obviously have to do, we have some other terms, and some caveats and some limiters.  No kidding!

First, new definition – what does incapacity mean?  Who cares, you say?  I don’t see incapacity anywhere in that definition you just gave us, you say.  True, you don’t, but it is going to be important when we get to the definition of “continuing treatment” so of course the DOL put it here.

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

Now that is important, but it is important later, so we will come back to it.  Remind me, will you?  Now for the caveats and limiters.

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c)

First thing you notice is we are talking about treatment again.  So treatment includes examinations to find out if you have a serious health condition and to evaluate the condition.  It is not a routine physical or other preventative sort of visits to the doctor.  A regimen of “continuing treatment” is prescription medication or therapy, but it is not taking over-the-counter medication or, for example, “getting plenty of rest and drinking plenty of fluids.”  So taking a couple of aspirins is not continuing treatment even if the doctor tells you to do it.  Again, that is going to be important so we will come back to it.

Finally, cosmetic treatments are not serious health conditions.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

29 CFR §825.113(b).

So basic cosmetic treatments are not serious health conditions . . . unless (hey, that is a caveat to a caveat, leave it to the DOL!) “inpatient hospital care is required or unless complications develop.”  Headaches are not serious health conditions unless they are migraines (another caveat to a caveat).  And finally, mental illness or allergies are serious health conditions if the conditions contained in section 113 are met.  OK, I get that, but who bunches mental illness and allergies together like they are the same thing?  Only the DOL.

Why? Qualifying Reasons for Leave, the General Rule.

Over the last several posts we have spent a lot of time on the Who and even the What of the FMLA.  Now let’s get into Why.  Why can an employee take leave?  Pretty simple and straightforward to start with.

If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122)

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

That’s it.  If an eligible employee has a child and to care for that child; if an eligible employee adopts a child or a child is placed with them for foster care; if an eligible employee has a spouse, child or parent with a serious health condition; if an eligible employee has a serious health condition; if an eligible employee’s spouse, child or parent is a member of the military on covered active duty (or is called to covered active duty) and has a qualifying exigency; or if an eligible employee needs to care for a covered service member who has a serious injury or illness (as defined in the Regs) and the employee is the spouse, child, parent or “next of kin” of the covered service member.

Simple.  And a couple more things to remember:  You have to apply these rights equally, for example, both fathers and mothers get time off to care for the birth of a child.

(b) Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.

29 CFR §825.112(b).

Also, if an employee is not actively employed, say they are laid off, they are not eligible for leave until they are recalled.  But the minute they are recalled, they are entitled to FMLA if they otherwise are eligible and if the reason for the leave is a qualifying reason.

(c) Active employee. In situations where the employer/employee relationship has been interrupted, such as an employee who has been on layoff, the employee must be recalled or otherwise be re-employed before being eligible for FMLA leave. Under such circumstances, an eligible employee is immediately entitled to further FMLA leave for a qualifying reason.

29 CFR §825.112(c).

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 4.

Last time we talked about the 50 employee within 75 mile test for eligibility under the FMLA.  We are going to talk about it again.  This time we are going to discuss how you determine if the employee who is requesting leave actually works within 75 miles of 49 other employees.  Let’s start with how we determine what the worksite is.  Some of this is just plain common sense and some of it probably does not apply to you, but the Department of Labor took the time to write these Regulations so we should probably at least take the time to read them.

Let’s start with the general rule:

(a) Generally, a worksite can refer to either a single location or a group of contiguous locations. Structures which form a campus or industrial park, or separate facilities in proximity with one another, may be considered a single site of employment. On the other hand, there may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within the building. For example, an office building with 50 different businesses as tenants will contain 50 sites of employment. The offices of each employer will be considered separate sites of employment for purposes of FMLA. An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.

29 CFR §825.111(a).

So that makes sense, right?  A big building in New York or Chicago that has a bunch of tenants can be a worksite for all of those tenants.  It is really the last sentence of that section that matters, right?  “An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.”  So what if we have a big campus with a bunch of buildings on it?  Well, that is a single site of employment too:

(1) Separate buildings or areas which are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages a number of warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.

29 CFR §825.111(a)(1).

And that makes sense too, right?  But what if the employee does not have a fixed site of employment?  What if it is a salesperson or a truck driver?  We have a Regulation for that too:

(2) For employees with no fixed worksite, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey. For transportation employees, their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment. For example, an airline pilot may work for an airline with headquarters in New York, but the pilot regularly reports for duty and originates or begins flights from the company’s facilities located in an airport in Chicago and returns to Chicago at the completion of one or more flights to go off duty. The pilot’s worksite is the facility in Chicago. An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

29 CFR §825.111(a)(2).

Now that section has a lot of stuff in it, so let’s break it down a bit.  First, if the employee does not have a fixed site, for example our truck driver, then their site of employment is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”  Not necessarily the company headquarters then.

What about our salesperson?  Is home their worksite?  No, it is not.  According to this Regulation, “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”  And the same is true for people who work from home.

With all of that in mind, how do we measure the 75 miles?  As the crow flies?  Nope, not unless you are a crow (or you can’t drive to work).  It is highway miles, when you drive.

(b) 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 is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).

29 CFR §825.111(b).

And the determination is made based on the number of employees that you have on the payroll, not by the number of employees that happen to be at work on the day the employee asks for leave.

(c) The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. Employees of educational institutions who are employed permanently or who are under contract are maintained on the payroll during any portion of the year when school is not in session.  See §825.105(c).

29 CFR §825.111(c).

And one last thing.  What about temps?  You know, co-employees?  What is their worksite?  Well, in that case the worksite is the primary employer’s site, not the secondary employer’s, but the employee counts for both employers for determining if they have 50 employees.

(3) For purposes of determining that employee’s eligibility, when an employee is jointly employed by two or more employers (see §825.106), the employee’s worksite is the primary employer’s office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location. The employee is also counted by the secondary employer to determine eligibility for the secondary employer’s full-time or permanent employees.

29 CFR §825.111(a)(3).

Well, that is enough of that.  Next time, why an employee can take a leave.

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 3.

So for the last couple of weeks we have talked about the 12 month and 1,250 hour rules to determine if an employee is eligible for leave.  Now let’s talk about the third and often overlooked eligibility requirement, the 50 employee test.  Remember:

(a) An eligible employee is an employee of a covered employer who:

(1) Has been employed by the employer for at least 12 months, and

(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (see §825.801 for special hours of service requirements for airline flight crew employees), and

(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. See §825.105(b) regarding employees who work outside the U.S.

29 CFR §825.110(a).

(e) Whether 50 employees are employed within 75 miles to ascertain an employee’s eligibility for FMLA benefits is determined when the employee gives notice of the need for leave. Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee’s eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee’s worksite, for that specific notice of the need for leave. Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.

29 CFR §825.110(e).

So here, eligibility is determined at the time the employee gives notice of the need for the leave.  And again, if the employee is eligible when they give notice of the need for leave, they are eligible for the duration of the leave, even if the number of employees at a specific location changes.  Makes sense, right?  That keeps sneaky employers from transferring or laying off employees to avoid having to give someone leave.  Nobody would do that, right?  Similarly, you can’t stop a leave once it starts just because the number of employees within 75 miles drops below 50.  And again, remember all of this counting occurs when the employee “gives notice of the need for leave”.

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 2.

Last time we talked about the 12 month rule for determining an eligible employee.  This time let’s talk about the 1,250 hour rule.  You remember, to be eligible you have to have worked for the employer for 12 months and you have to have worked at least 1,250 hours in the last 12 months.  (And if you are reading ahead don’t forget the 50 employee test).

Ok, so let’s start with what we count:

(c)(1) . . .  whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. See 29 CFR part 785. The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA’s principles may be used.

29 CFR §825.110(c)(1).

So that is easy enough, an hour worked for FLSA purposes is an hour worked for FMLA purposes.  And an hour worked for FLSA purposes is?  I’m not going to go through it all here.  But you can read about it here.  Another thing to keep in mind is that an employee who is off doing military duty and who is covered by USERRA gets credit for hours they would have worked while they were on USERRA covered leave.  29 CFR §825.110(c)(2).

And what about if we don’t have records of how many hours the employee worked?  Well, if the employee is non-exempt under the FLSA, you are required to keep time records, so shame on you if you don’t.  But what about exempt employees?  We don’t have to keep time records for exempt employees, what do we do with them?

(3) In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked (e.g., bona fide executive, administrative, and professional employees as defined in FLSA Regulations, 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours. An employer must be able to clearly demonstrate, for example, that full-time teachers (see §825.102 for definition) of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. See §825.801(d) for special rules applicable to airline flight crew employees.

29 CFR §825.110(c)(3).

That’s right, in the case of an exempt employee the assumption is that if they have worked the last year for you then they have worked 1,250 hours in that year (or ¾ of a year even, because remember, a work year is 2,080 hours) and if you want to contest that, the burden falls on you to show that they have not worked that time.

And to wrap these last 2 posts up:

(d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets 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. See §825.300(b) for rules governing the content of the eligibility notice given to employees.

29 CFR §825.110(c)(3).

So if an employee has worked the 12 months and 1,250 hours when the leave starts, they get all the leave even if they fall below the 1,250 hours after the leave has started.  And conversely, if an employee is not eligible when the leave starts but becomes eligible during the leave, then once they become eligible the leave is FMLA covered.  How can this happen?  Well, let’s say you have a pregnant employee who is not yet eligible for FMLA leave because she has not worked for you for 12 months, but you have a maternity leave policy, so she is out on leave.  While she is out on leave she crosses over the 12 month threshold.  Now, she is FMLA eligible and entitled to FMLA leave.  Your eligibility notice becomes very important if this happens.

Next Page »