Determining FML Eligibility Following a Break in Service

An employee who returns to work for the same employer may meet eligibility criteria for family and medical leave (FML) and access leave in the first 12 months of reemployment.

If an individual is rehired and there is less than a seven-year break in service, previous employment must be considered when determining the 12 months of employment. Any hours worked in the 12 months immediately preceding the day FML begins also count toward the 1,250 hour requirement, even if the time worked was in the previous employment period.

Months Employed

The Family and Medical Leave Act (FMLA) regulations provide detailed guidance for determining if an employee is eligible for leave (29 CFR §825.110). The two primary eligibility criteria are based on the number of months employed and number of hours worked.

To meet the first criteria, an employee must be employed for 12 months. These months don’t need to be consecutive or continuous. All separate periods of employment are counted cumulatively unless there is a break in service of more than seven years. Employment periods prior to a seven-year break in service are only counted if the break was due to military service in the National Guard or Reserve.

When counting time employed, any week in which an employee is maintained on the payroll for any part of a week, including any period of paid or unpaid leave during which other benefits (e.g., workers’ compensation benefits or health insurance) or compensation are provided by the employer counts as a week of employment.

Employment periods that count toward eligibility include summer and other breaks scheduled during the year if the employee is maintained on the employer’s group health plan, periods when an employee is on unpaid leave and receiving workers’ compensation benefits, and substitute and other employment. If the employee has worked the equivalence of 12 months (i.e., 52 weeks), they meet the required number of months employed.

Hours Worked

The second eligibility test to apply is whether the employee has worked 1,250 hours for the employer in the 12 months immediately preceding the first day the employee takes leave. Any work performed during the 12 consecutive months prior to the day leave begins should be counted whether it occurred during the current or previous period of employment, including if it occurred in two different positions.

For example, when a substitute is hired as a regular teacher, all service as a substitute must be considered to determine eligibility. If the person substituted on a regular basis for an entire school year, it is possible that the individual worked enough months and hours to be eligible for FML in the first year of regular employment.

Exception for Absences for Military Service

Employers must consider the months and hours that Reservists or National Guard members would have worked if they had not been called up for military service.

The months and hours an employee would have worked, but did not due to their military service, should be combined with the months employed and the hours actually worked to determine whether the employee meets the 12 months employed and 1,250 hours worked requirement for FML eligibility.

Applicability

Recently, a few districts have asked how to apply the eligibility criteria to an individual who is considering reemployment as a teacher next school year but is concerned about being able to take maternity leave within months of returning to work. In these specific scenarios, the teachers more than likely meet the months employed criteria because they previously worked for the district for one or more full-school years within the past seven years. However, because there was a full-year break in service, they won’t meet the 1,250 hour test until sometime in the spring.

While they aren’t eligible for FML, as an educator in a position requiring certification by the State Board for Educator Certification (SBEC), they are eligible for temporary disability leave (TDL). TDL would cover the time needed for recovery from birth, but it wouldn’t provide additional time to care for or bond with a newborn.

Resources

Additional information on FML and leaves and absences is available in the HR Library (member login required) and in The Administrator’s Guide to Managing Leaves and Absences.