FMLA Eligibility Review: Are All Your Employees Eligible?

How strong is your knowledge of the Family and Medical Leave Act (FMLA)?  FMLA allows employees to take unpaid time off for certain family or medical reasons.  Many employers misapply the FMLA in their workplace because they do not fully understand its eligibility requirements.  Below, we review FMLA eligibility guidelines so you can ensure you are applying the law correctly.

Employees who are eligible for FMLA can receive the following:

  • 12 weeks of leave in a 12-month period for one of these reasons:
    • The birth of a child and care of the newborn child within one year of birth
    • The placement with the employee of a child for adoption or foster care
    • Caring for the employee’s spouse, child, or parent with a serious health condition
    • An employee who has a serious health condition and cannot perform the essential functions of their job
    • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”


  • 26 weeks of leave during a 12-month period to care for a servicemember if the eligible employee is the servicemember’s spouse, child, or parent.

The leave does not have to be taken all at once. An employee can take a week at a time or even a few hours here and there. Note that this leave is unpaid, although employers may require employees to use their accrued paid leave during FMLA leave. In any case, the employee keeps their job and their health insurance, as if they are still working. An employee’s decision to take FMLA leave cannot be used against them, either for retaliation or punishment.

One thing to keep in mind is that not every employee qualifies to take this leave. There are two levels of qualification that apply. First, the employer needs to qualify. The employer must be a public or private employer with at least 50 employees. In addition, all public agencies, elementary schools, and secondary schools qualify, regardless of the number of employees.  Note that an employer is subject to the FMLA regardless of mileage so long as the employer has at least 50 employees or is a public agency or elementary/secondary school.

Next is individual employee eligibility. To be eligible, an employee must work at a jobsite at which at least 50 employees of the employer work or where at least 50 employees work within 75 miles of that jobsite, the employee must have worked for the employer for the last 12 months and worked a minimum of 1,250 hours during that time. Keep this in mind when employees ask about FMLA eligibility. Just because one employee qualifies does not mean all will.

Other Things to Consider

One thing to consider is that even if an employer allows an employee to take FMLA leave, company policies still need to be followed. FMLA leave and federal policy are separate from an employee’s duty to follow company policies regarding absences and use of leave. In other words, an employer can still hold an employee accountable for failure to abide by company policies.

Also, ensure you do not make blanket statements to employees about the availability of FMLA leave to employees. If you do this, you may have to follow through and grant the leave, even if you are not legally required to do so under the FMLA.  This is not the case, though, when you provide the required FMLA law notification to all employees.

In the past, employers have erroneously informed employees that they are eligible. Many employers who have made these promises were still obligated to allow the employee to take leave in accordance with the statute. There have also been cases where employers erroneously told workers to take off more time than allowed (such as 34 weeks vs. 12 weeks). If the employee actually and reasonably believed that the employer had granted FMLA time and not some other type of employment leave, then the employer may not be able to discipline or terminate the employee for missing work.

Contact Our Frisco Employment Law Attorneys Today

Be mindful of FMLA eligibility requirements before answering an employee’s questions about leave. Just because one employee is eligible does not mean all are. There are criteria that apply, so do not make promises or assumptions.

Have a question or concern about FMLA or your company’s obligations under the law? The Frisco employment lawyers at Simon Paschal PLLC can help. To schedule a consultation with our office, call (972) 893-9340 or fill out the online form.

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