FMLA Reg 825.215(d)(4)

Neferlaw · July 2002

I am having trouble understanding how the first sentence of this regulation correlates to the last sentence in the paragraph. Any help from you brains would be greatly appreciated.

John Vering MO · July 2002

Unpaid leave does not constitue service credit. See explantion of that section in introductory section of FMLA regs commenting on section 825.215(d)(4) in wage and hour publication 1419 at page 53.
John Vering

Neferlaw · July 2002

John, thank you for your reply. I am getting the run-around from the Dept. of Labor's phone system. Do you have a current phone number or address of where to send for this publication. Thank you so much.

Hatchetman · July 2002

Don't bother with trying to get the publication. You can access the regulation on the web.

Try this link [url]http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=825&SECTION=215&YEAR=1998&TYPE=TEXT[/url]

or try the US Department of Labor's "elaw" FMLA Advisor at this link
[url]http://www.elaws.dol.gov/fmla/wren/eb4.asp[/url]

njjel · July 2002

Help me to understand this paragraph also. First it appears to tell us we can't deny the credit then it seems to say we can????

Hatchetman · July 2002

[font size="1" color="#FF0000"]LAST EDITED ON 07-26-02 AT 01:40PM (CST)[/font][p]The way I read (d)(4) is that unpaid FMLA does not get credited as service time for the purposes of determining eligibility to benefits under a pension or retirement plan. However, if during the unpaid FMLA leave, eligibility to participate or vest in the plan would have occurred if the employee had remained at work, then that eligibility takes place for the employee on unpaid FMLA leave. The last sentence then seems to be a refinement of the first sentence given the change in circumstance brought on by the "eligibility" established by the second sentence: if the eligibilty is provided for under the second sentence, it is then discretionary with the employer to credit service time during the unpaid FMLA leave up to that point.

The paragraph seems to be made up of a general provision, with an exception and then a provision based upon the exception that modifies the general sentence.

That's the way I read it as a layperson.

Don D · July 2002

John: How do you arrive at that? It says "....shall not count toward a break in service..." I take that to mean if it does not count as a 'break in service' then it counts as service. Where am I going wrong?

Don D · July 2002

[font size="1" color="#FF0000"]LAST EDITED ON 07-26-02 AT 02:59PM (CST)[/font][p]I'm reading (d)(4)for the third time myself and agree with the neferlaw. There seems to be a contradiction. How can a person of normal intelligence make sense of this section? It also seems to grant a greater privilege to the person on FMLA than that person would have enjoyed had it not been for the FMLA event. The Act is full of language elsewhere that says it does not do that.

njjel · July 2002

Yup, I fully agree. That's why I posed my question. FMLA is SO not user friendly! :-)

FMLA Reg 825.215(d)(4)

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