Whether an employee can take job-protected leave under the Family and Medical Leave Act (FMLA) depends on several factors.
First, employees are only eligible for leave under the FMLA if they work for a “covered employer.” Their employer must employ 50 or more employees during at least 20 workweeks in the current or preceding calendar year. The employer needs to count any employee on payroll, whether full or part time.
Even if the employer is covered, the employee must meet three more requirements to be eligible for FMLA leave. The employee must have;
1. Worked for the covered employer for at least 12 months prior to taking leave.
These 12 months do not have to be consecutive. It is possible that an employee who needs leave (such as for a pregnancy or surgery), could hit the 12-month mark after the employee went out on leave. FMLA leave would start when the employee becomes eligible.
2. Worked for the covered employer for at least 1,250 hours during the 12 months prior to the requested leave starting;
An hour “worked” is considered a compensable hour worked under the Fair Labor Standards Act. It would not include non-working paid time off such as vacations, holidays, or lunch time (provided the employer kept records sufficient to show non-working lunch time), but it would include overtime, special shifts or other hours actually worked.
3. Works at a location where the covered employer employs at least 50 employees within 75 miles at the time leave is requested.
The 75 miles is usually measured over surface miles along the most direct route between work locations. An employee’s eligibility does not change should the workforce decrease after FMLA leave is requested.
Employers are advised to consult with counsel regarding the interaction between the FMLA and any applicable state or local laws that provide family and medical leave to employees.