Do You Know How to Count FMLA Eligibility Hours?

One of the most problematic areas for you when it comes to determining an employee’s FMLA leave eligibility are hours of service.  It's important to note that the burden of proving that an employee has not met the hours of service lies with you.  This is even the case if you are not required to maintain time records for that employee. In reality, few employers maintain hours worked for exempt employees- and this can cause difficulty when it comes to FMLA leave.

The four criteria for FMLA eligibility is the same for all employees regardless of the reason for the request for leave. In short, an eligible employee generally must:

• Work for a covered employer
• Have worked for the employer for at least 12 months as of the date the FMLA leave is due to start. The 12 months don't have to be consecutive- therefore part-time, temporary and seasonal work can typically count towards the 12 months.
• Work at a location where the company has at least 50 employees within 75 miles of the worksite. Any worker on payroll can count towards the 50 employee threshold and the 75 miles is worked out by the shortest route from worksite to home.
• Have at least 1250 hours of service for the employer during the 12-month period immediately before the date the leave is due to start. This averages to about 24 hours a week. Only time actually worked counts towards the target- sick leave, vacation and other form of paid time off are not counted.

While most of these criteria are fairly easy to determine through records- proving hours of service can be a far more ambiguous task.

The  McArdle v. Town of Dracult/Dracult Public Schools  case highlights this issue perfectly. While struggling through a divorce middle school teacher, Raymond McArdle, began experiencing depression and anxiety.  As a result, he worked under 700 hours one school year- well shy of the 1250 hour threshold.  When he sought FMLA leave the following school year, his school district denied his request and he was eventually terminated from his position. A disgruntled McArdle went on to file an FMLA interference claim. It was now the burden of his employer to prove that he DIDN’T work 1250 hours. This included any work out of official hours that could count towards his hours of service

In this particular case the school district’s attorneys managed to argue that, even taking into account the number of hours the employee graded papers and wrote journal articles outside of regular work hours, it was extremely unlikely that he worked anywhere close to the 1250 hours required.  The school district benefited from their lawyers competence and luckily for them the employee’s FMLA claims were dismissed.

The claims were dismissed largely because they employer was able to demonstrate that McArdle could not have worked 1250 hours. Where an employee’s eligibility for FMLA leave is in question, remember that you must clearly demonstrate the employee did not work 1,250 hours.  In some occupations this may include having the prove that your employee is not working outside of normal working hours- for example sending emails from home in the evening.

Keeping accurate records and knowing your employee’s work patterns could relieve this burden if hours of service are ever called into question!