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”.