The questions have come in all kinds of shapes and sizes.

Q: I furloughed several of my employees in 2020. Does the time on furlough count toward their FMLA eligibility?

Q: We forced an employee to take a leave of absence when they exhibited symptoms of COVID-19, which led to a multi-week leave of absence. Does the fact that we forced them to take leave change whether those hours should be credited toward FMLA eligibility?

Q: We have an exempt, managerial employee who in this past year took all 12 weeks of FMLA leave, and six additional weeks of Company-provided COVID paid leave because of complications due to COVID-19.  He also was intermittently absent for illness (due to residual COVID issues) to the tune of another four weeks.  We’re now in a new FMLA year and he is requesting FMLA leave again. Is he even eligible for FMLA leave since he didn’t work 1,250 hours?

1,250 Hours is an Exact Science

When it comes to the FMLA’s eligibility requirements, there is no ambiguity. At the point in which an employee requests FMLA leave for the first time in an FMLA leave year, the employee must have actually worked 1,250 hours for the employer within the previous 12 months.

What does “actually worked” mean?  The FMLA takes its lead from the terms outlined in the Fair Labor Standards Act. In general, “hours worked” includes all time an employee must be on duty or any additional time the employee is allowed (the FLSA uses the terms “suffered or permitted”) to work.

The Department of Labor makes clear:

The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

Because the FMLA requires the employee to actually perform work to earn the hours necessary to be eligible for FMLA leave, it means that furloughed hours do not count toward eligibility.  It also means the employee who was forced off work due to symptoms of COVID-19 was not actually working for the employer.

The result remains the same even if you paid the employee for the time they took (or were forced) off work.

What About Exempt Employees whose Hours are Not Known?

Exempt employees pose a particular dilemma for employers under the FMLA because the FMLA regulations effectively presume that they are eligible for FMLA leave, at least from an “hours worked” standpoint, and the employer has the burden to prove otherwise.  Keep this key provision in mind from the regulations (at 29 C.F.R. 825.110(c)(3)):

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours.  (My italics, not DOL’s)

Very few employers maintain hours worked for their exempt employees.  So, it may be difficult to establish that the employee above has not worked the requisite 1,250 hours required by the FMLA.  Using this employee as an example, let’s assume he typically would have worked around 1900 hours for the year (~48 weeks x 40 hours/wk).  He took 22 weeks of leave in the previous FMLA 12 months, which accounts for about 880 hours (22 weeks x 40 hours/wk).  1900 – 880 = 1020 hours worked  

This falls a fair amount short of the requisite 1,250 hours required under the FMLA.  Does this simple math prove that this exempt employee is not eligible for FMLA leave?  Not yet. Check out my tips below.

Insights for Employers

A couple of things to keep in mind when it comes to employee eligibility for FMLA leave:

  1. Where an exempt employee’s eligibility for FMLA leave is in question, remember that employers must clearly demonstrate the employee did not work 1,250 hours.  In the example of our employee in the question posed above, can you show, for instance, that the employee regularly works a typical 40-hour a week schedule in the office and then performs little or no work outside regular work hours?  Can you show that he never sends or reviews work email outside work hours?  Or that he never uses his cell phone for work after hours?  Is your exempt employee covered by a collective bargaining agreement or other employment agreement that sets out hours worked? These questions and others like it are helpful to better assess the total hours worked by your employee.
  2. Remember that eligibility is checked every time the employee requests leave for a “different FMLA-qualifying reason.”  In other words, if the reason for leave is the same and the employee previously was eligible within the same FMLA year, the employee is entitled to take leave in this instance.  However, if the employee requests leave for a new qualifying reason in the same FMLA year, or if it’s for the same reason within a new FMLA year, the employer should re-test eligibility.  See 29 C.F.R. 825.300(b).  This could be tricky right now for all of you folks on a calendar year FMLA, as you are checking eligibility right now at the turn of the year.
  3. I know we’re talking FMLA here (and why would we want to fill our minds with anything else?), but keep in mind that state and local leave laws and ordinances likely have different eligibility requirements than FMLA. Check those state and local requirements so you know how to address the eligibility question.

Who ever said FMLA was boring, especially during a pandemic?