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Is this worker entitled to FMLA leave? She was out for months on workers’ comp

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in FMLA Guidelines,Human Resources

Q. One of our employees missed several months of work last year because of a workers’ compensation qualifying injury. She has now requested leave under the FMLA. Do we have to grant this request for leave?

A. It depends. An employer is covered by the FMLA if it has employed 50 or more employees for each working day during 20 or more calendar workweeks in the present or preceding calendar year. Additionally, only those employees who have worked for the employer for 12 months (not necessarily consecutively) and have worked at least 1,250 hours during the previous 12 months are entitled to leave.

The courts have universally held that employees who do not meet the requirement of working at least 1,250 hours for the employer during the 12 months immediately preceding the request for leave are not entitled to FMLA leave, regardless of whether the employee’s lost time stems from a workers’ compensation qualifying injury.  

Accordingly, if the employee has not worked the requi­site 1,250 hours during the preceding 12 months, she would not be entitled to FMLA leave, and you would be justified in denying her request.

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