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FMLA Qualifications

Under FMLA law employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours over the previous 12 months.

We have an employee who is scheduled to give birth 25 days before her year anniversary with the company. Would she still be eligible for FMLA since the due date falls before the year has been served?

This seems to be a gray area since the Basic Leave Entitlement covers the following:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
• For a serious health condition that makes the employee unable to perform the employee’s job.

Could the employee be eligible to apply for FMLA after their one-year anniversary under the second qualified “To care for the employee’s child after birth?”

Thank you.

There is no gray area here. Your employee can take baby bonding leave after she has worked 12 months, assuming she is still employed with your company.

Many people make this mistake, but to be eligible for FMLA the employee must have worked for you for 12 months. An employee who works 11 months and then is on sick leave or maternity leave has not worked 12 months. She has only worked 11 months, even if her anniversary date has passed. Suppose Sue works 11 months and then goes on sick leave for 2 months. When Sue returns, she would still have to work an additional month to qualify for FMLA. Sue would not qualify for FMLA until 14 months after her hire date.

In this case, the crux of the matter is what happens when an employee who is not eligible for FMLA goes on childbirth disability, or must stop working due to complications in late pregnancy. In most states, you can terminate this employee once she uses up her sick leave. A few states have family leave laws that would allow her more time off, but there is no federal law that requires you to return this employee to her job or requires you to give her more than a week or so off.

If you have the policy of allowing employees who do not qualify for FMLA to take several weeks of unpaid medical leave (for a heart attack, stroke, cancer, etc.) then you must extend the same benefit to a woman for the 4 to 6 weeks of disability after childbirth (or for any period of disability in late pregnancy.) However, most employers do not have such a policy — any worker who does not qualify for FMLA is terminated after an absence of two or three weeks.

So your question about baby bonding leave is moot — this employee will be terminated before she has worked for your company 12 months, and therefore will never qualify for FMLA.

But to answer fully, a new mother (or father) can take leave to care for a new child at any time during the childs first year of life. If the parent became eligible for FMLA when the child was 2 months old, or 6 months old, the parent could take 12 weeks of unpaid, job-protected FMLA to care for the child at that point. (This leave also applies to adopted children.) As an employer, you have the right to require that this leave be continuous, not intermittent.

Suppose employee Amy gave birth after working for the company for 11 months and 28 days. She used 8 days of sick leave and vacation time, and then came back to work for 4 days with her doctors permission. At that point, Amy would have worked for the company for 12 months, and she would qualify for 12 weeks of unpaid, job-protected leave to care for the child under FMLA.

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5 Responses to “FMLA Qualifications”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update June 25, 2010 Says:

    [...] FMLA Qualifications Human Resource Blog By Caitlin Many people make this mistake, but to be eligible for FMLA the employee must have worked [...]

  2. Mary Says:

    I am 6 months pregnant and currently working for a recruiter (on contract) at a pharmaceutical company. I am qualified for FMLA leave as of Jan. 4/2012, but my due date is close to that time. Do I not qualify for FMLA if the baby decides to arrive 2 or 3 weeks premature? Do I get automatically laid off or fired? and if so, would I qualify for unemployment?

  3. Caitlin Says:

    Hi Mary! Congrats on the new baby! Unfortunately, yes, if you go into labor one day before you are eligible for FMLA, you can be terminated from your job. FMLA is an all-or-nothing proposition. Either you get 12 weeks of unpaid, job-protected leave, or you get nothing and can be terminated for absenteeism.
    Some states have family leave laws that would provide you with some time off, but you do not mention your state. Some employers offer short term disability or unpaid medical leave to workers who have been with the company less than one year. Check with your employer on this.
    If you are laid off because you are physically unable to work and miss too much time, once you recover, you will be eligible for unemployment benefits. HTH, and thanks for reading the blogs!~Caitlin

  4. Amanda Says:

    I realize this post is old but it is the first one to pop up on a Google search regarding FMLA eligibility. According to the FMLA regulation 825.110 part (d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave. See §825.300(b) for rules governing the content of the eligibility notice given to employees. If I am reading the regulation correctly, employees are eligible for FMLA leave even if they are out on non-FMLA leave. Please correct me if I’m wrong. Thank you.

  5. hrlady Says:

    Hi Amanda,
    Hi Amanda, Yes, it’s an old post. As of today an employee on non-FMLA leave can be eligible for FMLA leave as long as they’ve worked 1,250 hours and have been employed for 12 months as of the date of the FMLA leave is to start.

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