Human Resource Blog

Employee will reach 12 months of employment during leave.

I have an employee that is requesting leave but has only been employeed 11 months. She will reach the 12 month point during her leave. Is she entitled to FMLA?

No, this employee is not entitled to FMLA, nor would she reach the 12-month mark while on a leave of absence. Under FMLA, an employee must have worked for the employer for 12 months to be eligible.

This 12-month period need not be continuous. For example, an employee could work for you for 9 months, and then leave for another job. If you rehired her 2 years later, she could work for 3 months, and qualify for FMLA. Thats because the employee would have worked 12 months total over the last 7 years.

However, time spent on leave does not count towards the 12-month total for FMLA eligibility. The employee must have worked 12 months, not must have reached the one-year anniversary of her hire date. Suppose Tina has been with the XYZ corp since June 5, 2009. However, during that time she took a two-week vacation and took 3 weeks off for dental surgery. On June 5, 2010, Tina has not WORKED for the company for 12 months — she is 5 weeks short. On or about July 8, Tina would qualify for FMLA in this scenario.

This employee is not entitled to FMLA, nor will she become eligible for FMLA while she is on leave. You should grant her leave in accordance with company policy for employees who are not eligible for FMLA.