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Stuart Jackson

When FMLA Leave Really Isn’t FMLA Leave


You know how the actual text of the FMLA encourages employers to be generous in doling out leave?  Well, okay, maybe the FMLA doesn’t exactly put it that way, but it does say this:

Nothing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act . . . .

You might think that the FMLA would encourage employers to extend FMLA leave to those not yet eligible, as in those who have not worked at least twelve months.  Well, the Department of Labor regulations kind of rain on that party, covering the issue in both the preamble to the regulations and the regulations themselves:

. . . any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave.  . . .  Employers may not . . . count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

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The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.

So, if you are one of those employers who offers FMLA-type leave to brand new employees before they are actually eligible for FMLA leave, just know that the FMLA clock doesn’t begin to run until they are actually eligible.