The Twelve Months That an Employee Must Be Employed to Qualify for Federal FMLA Need Not Be Consecutive

May 24, 2007

For purposes of the federal Family and Medical Leave Act (FMLA), an employee must have been employed by his or her employer for at least 12 months and worked at least 1,250 hours in the last 12-month period to be eligible for FMLA leave. A federal Department of Labor (DOL) regulation (29 C.F.R. 825.110 (a)(1) & (b)) states that the 12 months the employee must be employed by the employer need not be consecutive. Thus, employees with one year of service who have worked an average of approximately 24 hours a week during the preceding 12 months are eligible for family or medical leave. The meaning of “consecutive” months for purposes of the 12-month employment period was tested recently in Rucker v. Lee Holding Company, 471 F.3d 6 (1st Cir. 2006). In this case, an employee had worked for an employer for five years, left employment for five years, and then returned to the employer. The employee was later terminated after he took medical leave seven months following his rehire. He argued that the DOL regulation allowed him to combine his two periods of employment for purposes of determining 12 months of employment. The U.S. District Court for Maine had ruled that the employee could not combine his two separate periods of employment because the clause in the DOL regulation regarding a non-consecutive 12-months was meant to account for employees whose work hours were intermittent, or for employee absences due to the use of vacation or sick time. On appeal, however, the First Circuit Court of Appeals pointed out that the preamble to the DOL’s FMLA regulations made it clear that the DOL did intend for non-consecutive months to count even if the employee did not maintain a continuing relationship with the employer. The Court of Appeals ruled that a complete separation of an employee from his or her employer for a period of years does not prevent that employee from using the earlier employment to satisfy the 12-month eligibility requirement. What does this case ruling mean for employers? Be aware that an employee who leaves employment and later returns, perhaps even 10 years later, may be eligible for FMLA leave once the employee works 1,250 hours. This is true because the employee’s prior period of employment can be combined with the employee’s new period of employment for purposes of determining the 12-month employment requirement. Also, be aware that a DOL regulation states how to determine whether intermittent, occasional, or casual employment qualifies as being employed “at least 12 months” for the purpose of eligibility for FMLA leave. The regulation states that an employer must look at the employee’s past employment on a week-by-week basis. If an employee works one day in a week, that week counts. If the employee has been employed by the employer for a total 52 weeks in the past, then the employee will meet the 12-month employment requirement. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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