FMLA Final Rules Eligibility Update

On January 16, 2009 the new FMLA regulations issued by the U.S. Department of Labor go into effect. This is the third in a series of articles profiling the most important changes in these regulations.


As every Human Resources pro knows, the FMLA or Family and Medical Leave Act of 1993 permits employees to take up to 12 weeks of unpaid leave for a variety of reasons, including baby bonding and the employee’s serious health condition.


One important change affects an employee’s eligibility for FMLA under section 825.110 of the regulations.


Under the FMLA regulations, an employee must work for the employer for 12 continuous months before the employee is eligible for FMLA leave, according to SHRM, the Society of Human Resource Management. However, the period of service does not have to occur immediately before the employee takes FMLA leave. However, under the 2009 regulations, employers are not required to  go back more than 7 years in most cases, to determine an employee’s eligibility.


Example: Suppose Suzie works for XYZ Corp. for 36 months continuously. Suzie quits, and goes to work for ABC Company. After 3 months, Suzie returns to XYZ Corp. Six months later, Suzie requests FMLA leave. If Suzie met all the other criteria, she would qualify because in the past, she worked for the employer for at least 12 consecutive months.  


The FMLA regulations refer to this as a 3-month break in service. Under the old regulations, a break in service did not disqualify an employee from FMLA leave, as long as the employee worked for the employer for 12 consecutive months, at some point in the past.


Under the new FMLA regulations, if the break in service is for 7 years or more, in most cases, it will disqualify the employee from FMLA leave. In the example above, suppose Suzie worked for XYZ Corp. for 36 months. She then went to work for ABC Company for 8 years before returning to XYZ Corp. Suzie would have to work at the new employer, XYZ Corp., for 12 continuous months before she qualifies for FMLA leave. The employer does not  to go back more than 7 years to determine if the employee has an uninterrupted 12-month period of service.


However, there are two major exceptions to the 7-year rule under the 2009 FMLA regulations. If the break in service was due to National Guard or Reserve military service, then the former period of employment does count, for FMLA purposes. If there was an agreement in place that the company would later rehire the worker, then the employer must go back longer than 7 years to determine employee eligibility for FMLA.


Under FMLA, employers are required to keep payroll and personnel records only for 3 years. If the employer no longer has payroll records from a period of service more than 7 years ago, then the burden of proof is on the employee. The employee must prove that he or she worked for the company for more than 12 months, at some point in the past.  

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