Should You Give FMLA Form to ‘Ineligible’ Employee?
Q. An employee who’s been employed since May is out on workers’ comp and will be for a while. Do I send her FMLA paperwork even though she hasn’t met the criteria of being employed for at least a year? It’s my understanding that I should send it to everyone that requests leave, and only after they return the paperwork should I determine if the person is, in fact, eligible. —L.P., California
A. In general, employers should give FMLA paperwork only to employees who are eligible for FMLA leave. Under the law, that means an employee who:
- Has been employed for at least 12 months.
- Has been employed for at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave.
- Is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site.
One exception does apply rarely, but possibly, in this case. If an employee who has worked more than 1,250 hours goes on workers’ comp leave before completing his/her 12 months of employment, that employee may become eligible for FMLA upon reaching the one-year milestone. That’s because time spent on workers’ comp leave must be counted toward the one-year threshold.
Note: Labor Department regulations say that if employees request FMLA leave before they’re eligible, you must notify them that they aren’t yet eligible or that they’ll be eligible on the day their FMLA leave starts.
