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Calculating Leave Eligibility When Company Closed Temporarily

Our company shut down in March due to the coronavirus, and then reopened the first of June. Now one of my employees is asking to take Family and Medical Leave Act (FMLA) leave. Does the employee have to start the year requirement all over again?

Not necessarily. To qualify for FMLA, an employee must have worked 1,250 hours in the year immediately preceding the start of the leave, and have worked for a year for the employer. If there was a break in service during seven years of employment, however, as long as the total time is a year or more (and the employee has worked the requisite number of hours), this qualifies for FMLA.

Calculating Hours Worked In the example noted above, the employee had been hired in April 2019, so he had almost met the year mark when the company shut down. By working in June and July 2020, he has now met the year mark. Additionally, any break in service caused by a military service obligation would be excused. As to “hours worked,” hours of service means hours actually worked by the employee. It does not mean hours paid. Paid nonworking time—such as vacations, holidays, furloughs, sick leave, or other time off (paid or otherwise)—doesnot count for purposes of calculating one’s FMLA eligibility

Therefore, if an employee was furloughed for a lengthy period or taking the emergency family leave under the Families First Coronavirus Response Act (FFCRA) to care for a child, that time is not considered hours worked, even though the latter is paid.

Impact on Leave Available Indeed, the time taken for the emergency family leave will be counted against an employee’s total 12 weeks available under FMLA.

Therefore, if an employee takes eight (8) weeks to care for his/her children under the emergency family leave, there will be only four (4) weeks remaining for the traditional FMLA. These are definitely challenging times, and if an employer has doubts or questions about the qualifications of FMLA, an attorney should be consulted.


Cal Chamber (2020)

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