Employees can use vacation time toward one-year FMLA eligibility

Robert Ruder began working in management at a Maine hospital on Jan. 5, 2000. Exactly one year later, he left work for unspecified medical reasons. His employer denied his request for leave under the Family and Medical Leave Act (FMLA) but did allow him to take a three-month medical leave of absence. At that time, he had accumulated at least two weeks vacation time.

When Ruder returned to work after his medical leave, he was fired. He sued, charging FMLA violations. The employer tried to get the case tossed out, arguing that Ruder wasn't protected by the FMLA because he wasn't an eligible employee when he took medical leave.

Under the FMLA, an employee becomes eligible once he works a minimum of 12 months, and he must have worked at least 1,250 hours in the preceding 12 months. In this case, Ruder left after 51 weeks, one week shy of FMLA eligibility.

Nevertheless, a district court sided with the employee. Reason: The FMLA allows workers to use accrued vacation time to reach the one-year eligibility threshold.

Also, the court's definition of "one week" is very pro-employee. The court said that if an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick or vacation time) during which other benefits are provided, the week counts as a week of employment. (Ruder v. MaineGeneral Medical Center, No. 01-CV-220-B-S, D. Me., 2002)

Note: Some courts have ruled the opposite way on this issue, saying that employees may not use vacation time to get over the one-year eligibility threshold.

Advice: Play it safe with workers on the one-year bubble, at least until a higher court addresses this issue. That means you should count any prior weeks for which an employee has taken approved vacation leave toward his 12-month threshold to earn FMLA eligibility. Exactly when during that first year the employee takes the vacation is irrelevant.