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New FMLA Rules Tweak Employee Eligibility Requirements

    Client Alerts
  • March 14, 2008

As explained in last week’s EmployNews, the Department of Labor’s new proposed Family and Medical Leave Act regulations do not make major changes to problems faced by many employers.  However, the rules contain a number of technical and procedural changes that will affect how employers administer FMLA leave.  This week’s article looks at changes to the rules governing employee eligibility for FMLA leave.  The 12-month, 1250-hour threshold for employee eligibility remains the same, with some important clarifications:

  • Professional Employer Organizations (PEOs) are deemed not to be joint employers.  Only the PEO client using the employees has FMLA responsibilities in most cases.
  • Most human resource professionals understand that the qualifying 12 months of employment need not be consecutive.  DOL is proposing that only work within the last five years be counted toward the eligibility requirement (prior work interrupted due to military leave could be an exception).
  • Non-FMLA time given to an employee prior to the date of eligibility will not count toward the 12-week FMLA entitlement.  This has caused some employers not to grant pre-eligibility leave for fear of the employee obtaining an additional 12-week entitlement upon their anniversary of employment.
  • For joint employees employed by two entities, the 12-month eligibility requirement is based upon a physical place of work.  In other words, the employee must be at a single place of business for 12 months for both employers to have FMLA obligations.

Next week, EmployNews will review changes to leave entitlements, substitution of paid for unpaid leave, and employee rights to be restored to an equivalent position.