FMLA eligibility

We have an employee who has not yet worked a year. We expect that she will need to leave on maternity leave before her one year, but will be out during and past the one year mark. We require accrued leave to be used before unpaid leave taken (running concurrently).

Our question is, we know that she does not qualify when she original takes leave, but does it then become a qualified event at the one year? If so, then when do we count the 12 weeks, from the time of the one year mark, or can we retro to include the whole "event"?


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  • Mikki, the FMLA requires that an employee work 12 months and 1250 hours in order to be eligible for leave. If your employee has worked the 1250 hours before she goes out on vacation, she will become eligible for FMLA when she has been "employed" for twelve months, regardless of whether she is currently at work or on paid leave. You cannot retroactively designate FMLA leave, however, so you should be sure to notice her as soon as she becomes eligible, if indeed she will be eligible while she is on vacation/sick leave. This might be an area in which you could use some state specific advice as well. For example, Massachusetts has a maternity leave act which would be implicated in this sort of circumstance. Good luck!

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