Q. An employee worked for us for years, took four years off to have a child and was rehired nine months ago. She asked for time off because her child needed surgery. We refused because we thought she was not-eligible. After we terminated her for an unauthorized leave of absence, we received a nasty letter from her attorney threatening to sue us for violating her rights under the FMLA. Who’s right?
A. Likely, her attorney is correct, and you should have granted her, provided that she had worked at least 1,250 hours since her rehire. To be eligible for FMLA leave, an employee must meet two criteria:
1. The employee must have been employed for at least 12 months. These months, however, do not have to be consecutive and do not even have to immediately precede the request for FMLA leave. As long the employee has worked for the employer for a total of 12 months over any duration of time, this criterion is met.
2. The employee must have at least 1,250 hours of service during the previous 12-month period. “Hours of service” means hours worked. Thus, nonworking time (whether paid or unpaid) such as vacations, holidays, furloughs, sick leave, other FMLA leave and other time-off, does not count in the calculation of hours of service.
This rule, however, has two key exceptions. First, an employee returning from fulfilling his or her National Guard or military Reserve obligation must be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the required 1,250 hours.
Second, time that an employee would have worked but for analso counts toward the required 1,250 hours.