employee eligible for fmla?

An employee went out on work comp (cts) before she completed 12 months employment. She has not returned to work yet and has been out about 4 months. She should be back in two weeks but they are now talking about doing surgery on her other hand. Is she eligible for FMLA protection?


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  • Nothing is certain in the murky realm of the FMLA, but you might want to look at this case: Robbins v. The Bureau of National Affairs, Inc., 896 F.Supp. 18 (D.C. Cir. 1995).

    The court in Robbins examined the issue of how to calculate ”hours of service” under the FMLA. It concluded that neither paid leave nor unpaid leave are included in calculating hours of service. Using this analysis, if your employee has worked less than 1250 hours in the year or so that she has been your employee, then she is not eligible for FMLA leave.

    Of course, that’s just the opinion of one federal district court judge. You should probably see if you can find other cases that may have relied on or disagreed with him or her.

    Let me know if you have any questions.

    Julie Athey
    Senior Attorney Editor
    M. Lee Smith Publishers

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