Employment Law Updates

Beware of inadvertently creating FMLA eligibility when none exists! The Family and Medical Leave Act (FMLA) generally provides 12 weeks of protected leave benefits only to certain larger employers.  It only covers employers with 50 or more employees, but there are additional limitations. 

In order for an employee of a covered employer to be eligible for FMLA leave, the employee must:Beware of inadvertently creating FMLA eligibility when none exists! The Family and Medical Leave Act (FMLA) generally provides 12 weeks of protected leave benefits only to certain larger employers.  It only covers employers with 50 or more employees, but there are additional limitations.  In order for an employee of a covered employer to be eligible for FMLA leave, the employee must:

  1. be employed by the employer for at least 12 non-consecutive months;1. be employed by the employer for at least 12 non-consecutive months;
  2. have worked 1,250 hours during the 12-month period preceding the start of the requested leave; and2. have worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
  3. work at a location where the employer employs 50 or more employees within a 75-mile radius.3. work at a location where the employer employs 50 or more employees within a 75-mile radius.

If a non-covered employer creates a policy that extends FMLA leave to its employees, or if an ineligible employee is treated by the employer as being eligible, courts have found that the FMLA will apply.  For example, if an employee has been employed for only 6 months and has not accrued sufficient leave time but asks for FMLA leave, and the employer grants the leave, the employer cannot thereafter say that FMLA does not apply to future leave requests, even though the employee would not have been eligible for the first request.If a non-covered employer creates a policy that extends FMLA leave to its employees, or if an ineligible employee is treated by the employer as being eligible, courts have found that the FMLA will apply.  For example, if an employee has been employed for only 6 months and has not accrued sufficient leave time but asks for FMLA leave, and the employer grants the leave, the employer cannot thereafter say that FMLA does not apply to future leave requests, even though the employee would not have been eligible for the first request.

Employers should be careful that their FMLA policies and treatment of FMLA leave requests do not lock them into FMLA coverage or eligibility when that coverage or eligibility is not required by law.

PLDR Law John Falcone 1

Office Hours

Mon - Fri 8:30 am - 5 pm
Sat Closed
Sun Closed

Contact Us

925 Main St., Suite 300 
Lynchburg, VA 24504 

434-846-2768
434-847-0141
This email address is being protected from spambots. You need JavaScript enabled to view it.