Tag Archives: FMLA

Employee eligibility: What you need to know about the new FMLA regulations

Yesterday, the Department of Labor released new final FMLA regulations that will take effect on January 16, 2009. The Labor Department developed these regulations because of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which President Bush signed last January, and because of parts of the current regulations being invalidated by various court decisions. The regulations detail two new military family leave entitlements. Here is a summary of the important changes that you should be aware of:

Employee Eligibility for FMLA – the 12-month rule

One of the requirements for eligibility is that an employee must work for that employer for at least 12 months. The new rule says that those 12 months need not be consecutive, but that employment before a 7-year break in service need not be counted. 29 CFR 825.110(b)(1). The rule provides for two exceptions: 1) Time served fulfilling National Guard or Reserve duty counts toward the 12-month employment requirement; and 2) Where there is a written agreement concerning the employer’s intention to rehire the employee after the break in service. 29 CFR 825.110(b)(2). If an employer chooses to count someone’s employment prior to a 7-year gap, it must do so for all employees with a similar break in service.  29 CFR 825.110(b)(4).

Working 1,250 hours in 12 months

Another eligibility requirement is that an employee must have worked at least 1,250 hours in the 12 months immediately preceding the beginning of the FMLA leave. A new regulation provides that an employee who is re-employed under USERRA after military service must be credited with the hours they would have worked but for the military service. 29 CFR 825.110(c)(2).

The Department of Labor clarified the eligibility rule to reflect that an employee who is out on non-FMLA leave may become eligible for FMLA leave during that time, thus turning the last part of the non-FMLA leave into FMLA leave. 29 CFR 825.110(d).

FMLA leave for members of the military and their relatives

A couple of paragraphs were added regarding required leave for employees or relatives who are members of the military.  Employers must grant FMLA leave to employees where there is a “qualifying exigency” arising from the fact that their child, parent, or spouse is a “covered military member on active duty” or has been notified of an impending call to active duty.  FMLA leave must also be granted to an employee to care for an injured servicememer who is a parent, spouse, child, or next of kin. 29 CFO 825.112(5), (6).

What’s a qualifying exigency?

The “qualifying exigency” referred to in the prior paragraph can be: 1) A short-notice deployment; 2) A military event or related activity; 3) Alternative childcare or school arrangements that need to be made because of military active duty status; 4) Financial or legal arrangements because of military active duty; 5) Counseling for the covered military member; 6) Short-term rest and recuperation of the military member; 7) Attending post-deployment activities sponsored by the military; or 8) Other activities arising out of military duty. 29 CFR 825.126.


These are the main changes to the eligibility regulations of the FMLA.  As you can see, most of the changes have to do with members of the military and their relatives.  Many employers might argue that this puts a lot of the burden of leave time from employment on the employer, and they’d be right.  However, the heaviest burdens of military service are still being carried by individual members of the military who are deployed overseas.  So a spreading of the burdens, in a sense, is not such a bad thing.


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How same-sex partners can get leave time for a partner’s serious health condition

In New Jersey, must employers provide family leave to partners in civil unions? Yes! New Jersey’s Family Leave Act gives civil union partners the same rights as married spouses with regard to taking leave time from employment for a partner’s serious health condition.

But this is not the case in most states. Most states have not legally recognized the need for same-sex partners to take family leave for each others’ serious health conditions. The Federal Family Medical Leave Act does not provide for leave time for same-sex partners due to each others’ serious health conditions. So unless the employer chooses to provide that benefit, or it’s in the union’s collective bargaining agreement with the employer, most same-sex partners in the U.S. will not have leave time available to take care of a sick partner when they need it.

Both the New Jersey and the Federal family leave laws have many requirements to qualify for leave time under their provisions. I’ll cover these requirements in future posts, but I’ll go ahead and highlight the major differences between New Jersey’s Family Leave Act and the Federal Family Medical Leave Act:

1)  The New Jersey law does not allow you to take leave for your own medical condition.  To take leave for your own “serious health condition,” (as defined under Federal law) you have to qualify under the Family Medical Leave Act (FMLA).  Not all employers and employees are covered by the FMLA.

Under New Jersey’s Family Leave Act allows certain employees who work for certain types of employers to take leave to care for: A newly born or adopted child; or a parent, child under 18, spouse, or civil union partner with a serious health condition.

2)  New Jersey law provides for 12 weeks of leave in a 24-month period.  Federal law provides for 12 weeks of leave in a 12-month period.  There are times when the New Jersey law would apply and the Federal law would not, allowing for leave time where it would not otherwise be given.

In situations where both laws would apply simultaneously, Federal law would trump state law – the employee is not eligible for both state and Federal leave. In those situations, only the Federal leave rules would apply.

3)  New Jersey’s Family Leave Act applies to employers who have 50 or more employees nationwide.  However, the law would only provide leave for those employees who are located in New Jersey.  By contrast, the Federal FMLA applies to employers who have 50 or more employees within 75 miles of each other.

4)  As noted above, the Federal FMLA does not apply to civil union partners and the New Jersey Family Leave Act does.

Keep checking this blog for more information on New Jersey’s Family Leave Act requirements.  Or make it easy on yourself and add my blog’s feed to your RSS reader or sign up for email alerts.

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Filed under Employee benefits, FMLA, NJ Family Leave Act

Employee fired for performance issues not eligible for FMLA

An employee who was fired for performance-related issues does not have a legitimate claim under the FMLA just because his request for FMLA leave happened to coincide with the termination of his employment, according to the U.S. District Court for the Eastern District of Pennsylvania.

The employee worked at a bank and he was fired because he was responsible for having controls in place that would have caught an embezzlement that had occurred at the bank. Before he was fired, the employee sought FMLA leave for knee surgery. However, the court found that the employee was not eligible for FMLA leave once he was fired because he was no longer employed by the bank.

According to the court, the employee was fired for a reason unrelated to his request for FMLA leave. An employee who has requested FMLA leave is not entitled to greater rights or benefits than he would be if he had not requested leave. In other words, the employer was entitled to fire the employee for performance related issues even though he had requested FMLA leave for knee surgery.

Edwards v. Harleysville National Bank, Civ. No. 07-3987, (ED Penn. 2008).

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