I am Eligible for FMLA Leave. Now What?

A few weeks back, I celebrated my one-year anniversary at Littler. You know what that means, right?

I’m F-M-L-A eligible, baby!

Now that I am eligible to take job-protected leave [picture the heavens opening up and the sun shining down on my face], I’m salivating over all the so-called “reasons” I could use FMLA leave- perhaps a Mexican beach vacation, an overdue trip to spring training with my buddies, maybe even a little derriere augmentation.

Goodness, the possibilities quite literally are endless!

There are a ton of quirky rules regarding FMLA eligibility, and I cover some of them below so that you have a resource when these issues pop up. But first, humor me while I tell you about my first year at Littler.

Celebrating One Year at Littler

I’ve represented employers in employment law for over 20 years.  For many of these years, I’ve admired Littler and its attorneys who have been a wealth of knowledge and wisdom for me in the FMLA area -people like fellow FMLA nerds Dana Connell and Alexis Knapp.  So, one year ago, several colleagues (Dave Radelet, Chris Johlie, Staci Ketay Rotman, Terry Creamer) and I joined Littler, the world’s largest employment practice representing employers with 1500 employment attorneys in 80+ offices around the world.

What a change! Littler has indeed been a game-changer for me and my clients in many ways, but let me quickly identify two that stand out:

1. The Leave and Accommodation team: I am part of a core group of 25 other Littler shareholders whose sole mission in life is to conquer FMLA, ADA and state leave law issues on behalf of employers. That core is part of a larger “Leave and Accommodation Practice Group,” which consists of nearly 250 Littler attorneys who  leave and accommodations law as much as I do.  This group is headed up by Michelle Falconer and Casey Kurtz, and it’s a force to be reckoned with, especially with leave gurus Pam Salgado (Washington) and Deidra Nguyen (CA) and Stephanie Mills-Gallan answering every paid leave question I have.
2. Deep Subject matter knowledge with cutting-edge (yet practical) counsel: No matter what the employment-related issue my clients throw at me, I can call on nationally known practitioners to help solve their problem. This benefit has been by far the most impressive. For instance, if my clients have an employee privacy issue or security breach, I ask Kwabena Appenteng to help; for sensitive wage/hours issues, I ping John Ybarra, Andrew Voss or Jennifer Schilling; for bet-the-company restrictive covenant work, I trust Jim Witz and Darren Mungerson; for benefits issues, I rely on Finn Pressly, who clients adore for his plain English explanation of benefits issues; for service animal accommodation questions, it’s Peter Petesch to the rescue; for tough drug testing or marijuana conundrums, I turn to Nancy Delogu for help; for ever-increasing transgender equity and pay equity audits, I can quickly call on Denise Visconti; for reductions-in-force, I rely on Kat Siegel and Emily Shoda to avoid disparate impact issues; when I need the perfectly-written brief for the win, I ask the “Chaucer” of brief writing, Todd Church; for implicit bias training that will knock clients socks off, I turn to Cindy-Ann Thomas, and when I need a role model on how best to treat clients and colleagues, I go no further than old friend Erin Webber.  I surely could go on and on, but I rest comfortably knowing that I am part of a firm that helps our clients navigate a complex business world with nuanced legal issues. My clients surely like this, too.

I am humbled that many of my FMLA Insights subscribers also are my clients.  I am so very grateful for your support and the chance to work with you.

But Jeff, Let’s Get Back to the FMLA

Enough of this love fest! Several of you asked extremely thoughtful questions about FMLA eligibility in conjunction with my first anniversary at Littler. [No you didn’t, I made this up.]

Let’s retrieve them from the mail bag and answer them below:

Q.  Did Littler ever change your status from temp to full-time employee? And did those temp hours count toward FMLA eligibility?

A. The firm would have been wise to hire me as a temp to kick the tires a bit. They didn’t, and now they’re stuck with me assuming they don’t find out about the spring training trip disguised as FMLA leave.

Never fear, I maintained full-time status since day one. However, even if I were a temp employee, the DOL has made clear that these hours count toward my FMLA eligibility. In fact, I covered this rather quirky concept in a previous blog post.

Q.  Assuming Littler is on a rolling FMLA year [ahem, that would be proprietary info, my friend], when would the firm check your FMLA eligibility for your Mexican beach vacation trip legitimate FMLA leave? 

A.  When it comes to checking eligibility, there are two key rules to follow:

1. 1. The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.
   2. Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave for that particular reason does not change for the remainder of the FMLA year.

But what if the FMLA leave starts as intermittent leave but then morphs into continuous leave? Or visa versa? Does this change in the way I take leave require Littler to re-check my FMLA eligibility?  In a word, no.  For example, let’s say I have a bad back. Once I became eligible for FMLA leave for my bad back in this FMLA leave (let’s say March 1, 2020), I remain eligible to take leave for my bad back for the remainder of the FMLA year (i.e., March 1, 2021). It doesn’t matter whether I need intermittent or continuous leave in the same FMLA year.

I cover this concept in detail in a previous post.  Check it out here.

Q.  If Littler asked you to practice for a time in one of its international offices, would you still be eligible to take FMLA leave?

A. Ah yes, thanks for the reminder! Have I mentioned that Littler is the largest employment practice in the world representing employers with attorneys licensed in all 50 states, offices in 35 out of the 50 states (as well as D.C. and Puerto Rico) and in approximately 20 countries around the globe?  We literally can assist clients anywhere and everywhere.

I digress. To answer your question, with the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once that individual steps off U.S. soil and works for one work week in another country. But is the converse true? For instance, are foreign nationals on H-1B work visas eligible for FMLA leave? I’ve answered that one here.

Q.   Jeff, let’s assume you took a medical leave of absence before you reached the one-year mark that otherwise would have qualified as FMLA leave. Could Littler credit that pre-FMLA leave against your FMLA entitlement once you became eligible for FMLA leave?

A.  No. As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In that portion of the preamble, the DOL states:

…any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

Q.  If Littler shipped you out to the great State of Wyoming to practice law, would you still be eligible to take FMLA?

A. Wyoming is indeed one of the few states without a Littler office, so I likely would not be eligible to take FMLA leave unless Littler employed 50 employees within 75 miles of my work location.  In this previous post, I explain why employers must decide whether they will include this 50/75 requirement in their FMLA policy. If they do not, they likely will not be able to argue later that these employees are ineligible for FMLA leave.

Q.  You tell us that you’ve worked for one year. But have you worked the requisite 1,250 hours in the past 12 months to be eligible for FMLA leave? We HR folks care about the technicalities, you know.

A.  Well, bless your little heart, HR professional! Keeping me on my toes, I see, and I like it. For the record, I worked 1,250 hours within the past 12 months.  Because I am an FLSA exempt employee, the FMLA regulations require Littler as my employer to establish that I had not worked the requisite 1,250 hours to deny eligibility for FMLA leave. See Section 110(c)(3) of the regs:

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. An employer must be able to clearly demonstrate, for example, that full-time teachers of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave.

Q.  The word on the FMLA circuit is that you’re planning to celebrate your one-year anniversary with a little derriere augmentation? Is this true? And if so, would it be covered by FMLA?

A. Oh, you guys! I mean, I definitely could use a little derriere augmentation, but it just ain’t my style. In any event, we know from a previous post that time off for cosmetic surgery is not covered unless it involves an overnight stay or complications develop. [If nothing else, click on the link above for one of my all-time favorite FMLA Insights blog photos!]

Q.  Jeff, I’m mean, you’re fine and all, but I really don’t care about your first anniversary. I just want to confirm that you’ll continue the blog. What say you?

A. I’m delighted that you care [only about my blog]. I am pleased to report that my FMLA Insights blog will continue and all its archives are available to you. The blog is not affiliated in any way with Littler, but I will remain the sole author. If you’ve not yet subscribed to this blog, you can do so on the right side of this page.

Thanks again for all your support! I  my readers!

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.