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FMLA Eligibility

Employees are considered to be eligible for FMLA leave if they have worked a minimum of 1,250 hours for a covered employer. Employees, to be deemed eligible for FMLA leave, must also work for at least one year at a site where at least 50 employees of the same employer are working within 75 miles.

For employers to be considered as “covered” they must have 50 or more employees on their payroll in 20 or more work weeks in the existing, or previous calendar, and they must be involved in business. Public agencies, including state, federal and local employers, and local education agencies, regardless of the number of employees, also apply to the FMLA.

A covered employer must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month span for any of the following reasons:

  • Pregnancy, prenatal medical care or childbirth-related incident
  • A severe health condition that makes the employee incapable of performing his or her job
  • To care for the employee’s child after birth, or placement for adoption or foster care
  • To care for the employee’s spouse, son or daughter, or parent who has a serious health condition

A serious health condition, under FMLA, is defined as an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider for a condition. This serious condition either inhibits the employee from performing his or her job tasks, or prevents the effected family members from attending school or partaking in other routine activities.

Ongoing treatment has specific requirements for employees to be considered for a serious health condition as well. To be termed as an employee going through “continuous treatment,” any of the following reasons can fulfill the requirements: if the injury and incapacity to work lasts three consecutive calendar days and is combined with at least two visits to a healthcare professional, if the employee has one visit and a schedule of continuous medical care, or if the employee is in a situation where he cannot work due to a chronic illness or she cannot work because of a pregnancy.

Employees with a child, spouse, or parent on covered active duty status, or called to covered active duty status, in the Armed Forces, including the National Guard and Reserves, may also be entitled to a 12-week leave and are permitted use it in order to address any qualifying exigencies.
Qualifying exigencies include attending specific military events, arranging for alternative childcare, taking care of financial and legal arrangements, going to counseling sessions, and attending post-deployment reintegration briefings.

Special leave entitlement, through FMLA, allows employees, who are eligible, to take a maximum of 26 weeks of leave to take care of a family member who is a covered service member during a single 12-month period. A covered service member is someone who is either:

  • A member of the Armed Forces who is experiencing and going through medical treatment, recuperation, therapy, in outpatient status, or on the temporary retired list for a serious injury and illness
  • A veteran who was a member of the Armed Forces at any time during the five years before the date of treatment and is going through medical treatment, recuperation, or therapy for a serious injury or illness

During FMLA leave, an employee’s health coverage is mandated to be kept by the employer under any “group health plan” on the same terms as if the employee had been continuing to work. When an employee has returned from FMLA leave, typically they must be reinstated to their original positions with equivalent pay, benefits and other employment terms. The use of FMLA leave by an employee cannot result in the loss of any employment benefit that accumulated before an employee began his or her FMLA leave of absence.