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Base FMLA eligibility on date leave begins

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in FMLA Guidelines,Human Resources

Employees must have worked for their employer for one year before they’re eligible for FMLA leave. In addition, they must have worked 1,250 hours in the previous 12 months.

Employees also have to give 30 days’ notice before taking leave. That means some employees may ask for FMLA leave before they are actually eligible. For example, an employee may request time off for a serious health condition when he still has a few hours more to work before hitting the one-year or 1,250-hour milestone.

Employers can’t deny the request merely because it was made before the employee became eligible.

Recent case: Richard Bennett worked at a Walmart store for 10 months when his doctor provided him with 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 supervisor he would not be at work the next day because his knee was hurting. His supervisor allegedly told him that he must report. When Bennett refused, he was fired for ­alleged misconduct

He sued, alleging interference with his right to take FMLA leave.

Walmart argued that because Bennett wasn’t eligible for leave at the time he made the initial request, he couldn’t claim interference.

The court disagreed, noting that what counts isn’t the request date, but the first day of leave. On that day, Bennett had worked for the company for a year or more. (Ben­nett v. Wal-Mart, No. 11-3066, CD IL, 2011)

Final note: Bennett still lost his case because his lawyer never proved that he had worked for 1,250 hours in the 12 months before he took time off.

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