Calculating Eligibility for FMLA Leave: When Does 7 Equal 12?

December 26, 2006

Must employers include previous periods of employment in calculating eligibility for FMLA leave?

More employees may be eligible for leave under the Family and Medical Leave Act (FMLA) than many employers may contemplate, according to a federal appellate court decision in Boston. The Court in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. Dec. 18, 2006), is requiring employers to include prior periods of employment--in this case, up to five years in the past--in determining whether employees qualify for statutory leave.

A car salesman who had worked for a dealership for five years and then left his employment returned to work at the dealership after a lapse of five years. Seven months after rejoining the company, he missed several weeks of work because of a back injury. After almost two months of intermittent absences from the job, the company terminated the salesman's employment, causing him to file suit against the dealership for violating the FMLA. The salesman claimed his employment at the dealership over five years earlier should have been included in calculating whether he had been employed for at least 12 months prior to applying for FMLA leave, to make him eligible for leave under the Act.

The FMLA allows "eligible employees" to take medical leave for a serious health condition that prevents the employee from performing the functions of his or her job, among other things. To qualify, the leave applicant must have been employed "(i) for at least 12 months by the employer with respect to whom leave is requested…; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." Thus, while the hours requirement refers to a "previous" 12-month period, the months employed requirement does not. The United States Department of Labor (DOL) at one time attempted to clarify this by stating, "The 12 months an employee must have been employed by the employer need not be consecutive months." But the question remained: how far in the past might be the non-consecutive periods of employment?

The trial court in Rucker ruled that a five year hiatus in employment did not meet the requirements of the law. The court determined that neither Congress nor the DOL could have intended to allow an employee to cobble together two discrete periods of employment, separated possibly by many years, to become eligible for FMLA leave. The salesman appealed, and the Court of Appeals reversed.

The First Circuit found that both the FMLA and the DOL's regulation were ambiguous. Therefore, it relied on the preamble to the regulation and a friend-of-the-court brief submitted by the Department at the Court's request. The DOL rejected the exclusion of employment experience more than two years prior to the date of re-employment and, in addition, indicated that a break in service of over five years would be at the "outer bounds of what is permissible." While declining to establish a "judge-fashioned rule" on the limits of breaks in service, the Court accepted the DOL's position at face value, holding that the complete separation from employment for a period of five years did not prevent the employee from counting an earlier period of employment in satisfying the FMLA's 12-month requirement.

The DOL's rationale for counting periods of employment within two years of the renewed employment relationship rested in part on the federal requirement for employers to retain FMLA records for three years. However, this reasoning does not square with the DOL's willingness to allow employment five years distant from any current FMLA leave application. Whether the DOL will issue further clarifying regulations remains to be seen. In the meantime, unless other federal appeals reach different results, employers throughout the country would be prudent to aggregate past periods of employment, at least up to five years distant, when calculating the 12-month employment period for FMLA leave eligibility.

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