Who qualifies for FMLA?

On Behalf of | Oct 8, 2021 | Employment Law Defense, Firm News

As an employer, you want your employees to show up, do the job, and protect the interests of your business. After all, it is a mutually beneficial arrangement: you provide the work, the pay and the benefits they need to live, they provide the services you need to keep running. The 1993 Family Medical Leave Act (FMLA) ensures that employees who are facing medical or mental issues are able to get the care they need to stay employed and to remain productive on the job. But not every employee is eligible and not every employer is required to provide FMLA.

What makes an employer required to provide FMLA?

The FMLA applies to all public employers and public and private elementary or secondary schools. It applies to private employers who:

  • Have 50 or more employees.
  • Have employees who work 20 or more workweeks in either the current or preceding calendar.
  • Have a business that is jointly owned or has a successor owner.

The rules as to who is eligible to take FMLA time off and which employers are required to provide FMLA, can mean that some seasonal employers will not have to provide FMLA benefits to workers.

Which employees are covered?

Airline employees have specific eligibility requirements, otherwise to be eligible for FMLA time off, the employee must meet the following criteria:

  1. The employee must work for a covered employer and have been at the job for at least 12 months and have worked at least 1,250 hours in that 12 months before the FMLA leave begins. If a workday is eight hours, this is equal to roughly 156 workdays. This typically works out to be close to eight months on a full-time job.
  2. The employee must work at a location that has at least 50 employees within 75 miles of it.

The most common reasons employees will take FMLA time is when they have a baby, adopt or foster a child or children. The other two most common reasons are to care for a family member with a serious health condition or for their own serious health condition.

What can an employer not do to an employee while the employee is out on FMLA?

As an employer you are prohibited from requiring any work duties from the employee while they are on FLMA time. You also cannot fire, discipline or penalize the employee during their FMLA.

If the employee’s health situation is serious, as an employer you are allowed to contact the health care provider to “authenticate or clarify recertification” but you are prohibited from requiring any other medical opinions, as per section 825.100 of the 1993 FMLA.

If an employee is dishonest or fraudulent about their need for FMLA, they may be abusing it. In these cases, consult an employment law attorney as you may be well within your right to terminate the worker.