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Not eligible for FMLA? Don’t assess illness

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in Employment Law,Human Resources

When a worker requests FMLA leave and it’s clear from your records that she isn’t eligible because she hasn’t worked the requisite 1,250 hours in the past year, there’s no need to go further.  

You don’t have to figure out whether the claimed reason for needing FMLA leave meets the definition of a serious health condition. As long as you are confident you are right on the hours worked, anything more is a waste of time.

Recent case: Ndri worked as a junior accountant. She injured her knee enough to think she needed surgery. She requested FMLA leave from her employer for two weeks to travel to another country for treatment. The employer didn’t ask for details about her condition. Instead, it turned down her request because she had not worked more than 1,250 hours for the company in the past year.

Ndri took leave anyway, even though she had been warned that she might lose her job. Then she sent an email from overseas, requesting another week.

She was terminated and sued, alleging interference with the right to FMLA leave. The case was quickly dismissed because Ndri couldn’t show she had worked the required hours. (Diby v. Kepco, No. 16-CV-593, ED NY, 2016)

Final note: Use a checklist so you don’t get bogged down when considering an FMLA request. First item: Whether the employee is even entitled to leave by checking whether she has worked for the company for a year and has worked 1,250 hours or more in the past 12 months. Then see if she has a serious health condition under the FMLA, or whether the requested time off is for another allowed reason like childbirth or dependent care.

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