Who qualifies for leave under the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) gives gives employees the right to twelve weeks of job-protected, unpaid leave in any twelve-month period for certain family and medical circumstances. This leave taken under the FMLA is referred to as FMLA leave.

Thus, an employer must give its employees leave when they request it under the FMLA. Further, an employer cannot fire an employee on FMLA leave or fire an employee because he is about to take FMLA leave.

The FMLA covers employers who have employed 50 or more employees for at least twenty weeks. Unlike with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, employees for purposes of the FMLA are defined using the payroll method—that is, if a worker is on the payroll, he is an employee.

Employees are entitled to FMLA leave only under certain circumstances: the birth of a child or to care for a newborn child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because the employee has a serious health condition that keeps him from performing his job.

Eligible Employees

However, not all employees are entitled to FMLA leave. The FMLA only grants rights to those employees who work for a covered employer, who have been employed by that employer for at least twelve months, who has been employed for at least 1,250 hours of services for that employer during the previous twelve months, and who has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.

The required twelve months of employment do not have to consecutive or continuous and are calculated from the date the leave is requested. Take, for example, an employee who worked for seven months for his employer in 2014. The employee is rehired at the beginning of 2016 and requests leave on July 1, 2016. He is entitle to leave because in total he has worked for at least twelve months even though there was a gap in between the two periods of employment.

Whether or not an employee has met the 1,250 hours requirement depends on the amount of hours the employee actually worked. This means that time that an employee can use effectively for her own purposes is not counted under the FMLA. For example, sick leave and paid or unpaid leave do not count toward the hours requirement.

To be covered by the FMLA an employee must also work at a worksite where the employer has 50 or more employees within 75 miles of the worksite. A worksite is generally where the employee reports to or where he receives his assignments from. For example, the worksite for a traveling salesman might be the company headquarters where the salesman has to send reports and purchase orders.

Further, the worksite does not have to be one single location. It can be a group of connected buildings such as a campus or industrial parks. It can also be separate buildings in reasonable geographic proximity, used for the same basic purposes and with the same staff or equipment.

If these requirements are met, the employee is an eligible employee under the FMLA and is entitled to take leave.

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