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Base FMLA eligibility on date leave begins, not date employee requests it

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in FMLA Guidelines,Human Resources

Employees must work for their em­­ployer for at least one year before they’re eligible for FMLA leave. They also must have worked at least 1,250 hours in those previous 12 months.

Plus, they have to give you at least 30 days’ notice before taking leave when possible.

That means some employees—seeing their FMLA eligibility on the horizon—may ask for FMLA leave before they’ve actually hit those one-year and 1,250-hour eligibility milestones.

That’s OK. Remember, employers can’t deny an employee’s FMLA re­­quest simply because it was made before the employee became eligible.

Recent case: Richard Bennett worked at a Walmart store for 10 months when his doctor gave him a medical certification for intermittent FMLA leave. Bennett had a knee problem that flared up periodically, and which his doctor estimated would require three to seven days of leave twice in the next six months.

Three months later, Bennett told his boss he’d need a day off because of knee pains. The boss allegedly told him to come to work. When Bennett refused, he was fired for alleged misconduct. He sued, alleging FMLA interference.

Walmart argued that because Bennett wasn’t eligible for leave at the time he made the initial request, he couldn’t take the FMLA leave. The court disagreed, saying that what counts is the first day of leave for eligibility reasons, not the request date. (Bennett v. Wal-Mart, No. 11-3066, CD IL, 2011)

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