Visit Steve Palazzolo’s Warner Employment News From the Law Shanty video podcast for timely information on how the COVID-19 pandemic is impacting employers and their workforce – and many other topics.

What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 1.

Well now we know who a covered employer is under the FMLA.  So who gets leave?  Every employee?  No, only “eligible employees.”

(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).

So let’s start with the 12 months.  The first requirement for an employee to be an eligible employee is they have to work for you for at least 12 months.  But that 12 months does not have to be consecutive:

(b) The 12 months an employee must have been employed by the employer need not be consecutive months, provided

(1) Subject to the exceptions provided in paragraph (b)(2) of this section, employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months.

(2) Employment periods preceding a break in service of more than seven years must be counted in determining whether the employee has been employed by the employer for at least 12 months where:

(i) The employee’s break in service is occasioned by the fulfillment of his or her Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered service obligation. The period of absence from work due to or necessitated by USERRA-covered service must be also counted in determining whether the employee has been employed for at least 12 months by the employer. However, this section does not provide any greater entitlement to the employee than would be available under the USERRA; or

(ii) A written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes).

(3) If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as at least 12 months, 52 weeks is deemed to be equal to 12 months.

(4) Nothing in this section prevents employers from considering employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month employment requirement. However, if an employer chooses to recognize such prior employment, the employer must do so uniformly, with respect to all employees with similar breaks in service.

29 CFR §825.110(b).

And there are a bunch of little rules that apply to this whole 12 month thing.  For example, if there is a break in service – in other words, if the 12 months are not consecutive – the break in service has to be 7 years long before the 12 months resets. Or, if the time off is because the employee is in the military and covered by USERRA, the time spent in the USERRA-covered service is counted as time worked.  Of, if there is a CBA (or other written agreement) concerning the employer’s intention to rehire, that governs.

Also, any time that the employee is on the payroll, including time on paid or unpaid leave, for a part of a week, that part of the week counts as a full week toward the 12 months.  And finally, if the employee is employed intermittently or occasionally or casually (for example, say, seasonally) then 52 weeks equals 12 months.

Oh, and you can also choose to recognize periods of employment that occurred longer than seven years ago, but if you do you have to do it uniformly.