Legitimate Ways to Establish FMLA Eligibility: 5 Solutions for When an Employee Doesn’t Qualify

The Family and Medical Leave Act (FMLA) is an important federal law that can become complicated to navigate, as it contains many provisions that must be followed to ensure compliance. Having a solid way to establish FMLA eligibility for employees is important for HR teams to remain compliant.

Employers who fall under the coverage of FMLA are obligated to offer qualifying employees up to 12 weeks of job-protected, unpaid leave annually for specific medical and family-related reasons, such as the adoption or birth of a child, taking care of a family member diagnosed with a severe health condition, or dealing with the employee’s own severe health condition.

HR teams must be knowledgeable about the eligibility criteria, notice requirements, medical certification, intermittent leave, and reinstatement rights outlined in the FMLA. They must also ensure that their company policies and practices are in compliance with the law.

Additionally, FMLA overlaps with other laws, such as the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA), which can further complicate matters for HR teams.

Seems confusing, right? So here are a few steps to help ensure your HR team is FMLA compliant. 

Understand the FMLA Requirements

Before determining an employee’s eligibility for FMLA leave, it’s crucial to understand the requirements. The following conditions must be satisfied for an employee to qualify for FMLA leave:

  • The employee must have completed at least 12 months of service with their employer.
  • The employee must have worked a minimum of 1,250 hours in the previous 12 months before their FMLA leave.
  • The employer must have at least 50 employees working within a 75-mile radius of the employee’s worksite.

If an employee does not fulfill all three criteria, they will not be eligible for FMLA leave. However, it’s important to note that certain states have their own family and medical leave laws with differing eligibility requirements.

Determine the Type of Leave the Employee Needs

Once you have determined that the employee meets the eligibility requirements for FMLA, you need to determine the type of leave they need. FMLA covers the following situations:

  • Birth and care of a newborn child.
  • Adoption or foster care placement of a child.
  • Care of an immediate family member with a serious health condition.
  • The employee’s own serious health condition.
  • A qualifying exigency arising out of the fact that a spouse, child, or parent is on covered active duty or call to covered active-duty status as a member of the National Guard or Reserve.
  • Care for a covered service member with a serious injury or illness.

If the employee’s reason for leave does not fall into one of these categories, they are not eligible for FMLA leave. However, they may be eligible for other forms of leave under the employer’s policies or state laws.

Collect Documentation

After verifying that the employee satisfies the FMLA eligibility requirements and their leave reason fits into one of the six categories, you should gather documentation. As per FMLA regulations, employees must give notice of their leave requirement at least 30 days beforehand, if it’s predictable. If the leave is unpredictable, the employee should give notice as soon as possible. 

In addition, the employee must obtain certification from a healthcare provider that substantiates their requirement for FMLA leave. The certification must comprise the commencement date of the ailment, its anticipated duration, and the medical evidence validating the necessity for leave.

In case the leave is intended for caring for a family member with a severe health condition, the certification should specify the family member, the health condition’s nature, and the requirement for the employee’s engagement in caregiving.

Determine Length of Leave

Once you have collected the necessary documentation, you need to determine the length of the employee’s FMLA leave. FMLA allows eligible employees to take up to 12 weeks of unpaid leave per year. However, some situations may allow for an extension of leave.

For example, if an employee is caring for a covered service member with a serious injury or illness, they may be eligible for up to 26 weeks of FMLA leave. Additionally, if the employee is taking intermittent leave, you need to track the amount of leave they take and ensure that they do not exceed their 12 weeks.

What to Do If an Employee Does Not Meet the FMLA Requirements?

It is essential to establish the reason why the employee does not qualify for FMLA. For example:

  • The employee has not worked there for 12 months or 1,250 hours
  • The employer does not have 50 employees within a 75-mile radius
  • The leave request is not under FMLA
  • The employee has already utilized their 12-week leave entitlement within a 12-month period

It is important to comply with the appropriate notice and documentation requirements when denying FMLA. These are just a few examples, but once you have determined the reason, you can begin to explore other options that may be available to the employee. Here are some steps to consider:

Review Your Company’s Leave Policies

Check your company’s policies to determine if there are any other leave options available to the employee. Some companies may offer additional leave beyond what is required by law. If your company does not have an established leave policy, consider creating one that provides for other types of leave, such as personal or sick leave.

Explore Short-Term Disability

If an employee is incapacitated due to an illness or injury, short-term disability (STD) insurance can be a viable solution. Typically, STD provides a fraction of the employee’s salary for a restricted time, generally up to six months. If your company provides STD insurance, it is possible to apprise the employee of this alternative.

Consider Offering Leave Without Pay

Even if an employee does not qualify for FMLA or any other type of leave, you may still consider offering leave without pay. This option allows the employee to take time off work, but they will not receive any pay during the time off. While this may not be ideal for the employee, it does provide them with the opportunity to address their personal or medical needs.

Explore Flexible Work Arrangements

If the reason the employee does not qualify for FMLA is due to a medical condition or disability, consider exploring flexible work arrangements that would allow the employee to continue working but with accommodations. For example, you could allow the employee to work from home, modify their work schedule or assign them to a less physically demanding role.

Provide Referral to Community Resources

If an employee is experiencing a personal or family crisis, there may be community resources available to assist them. Consider providing the employee with a list of community resources, such as counseling services, support groups or financial assistance programs.

Stay Compliant with FMLA Requirements

FMLA provides valuable protections for eligible employees, but not all employees will qualify for FMLA leave. It is HR’s responsibility to explore other options that may be available to the employee and have clear communication about the company’s policies and available options. The reasons for their ineligibility for FMLA should be thoroughly explained, along with any alternative courses of action.

Additionally, it is crucial to keep a record of any leave arrangements or accommodations that the employee is provided with.
VirgilHR’s compliance software solution can help keep your team in adherence to all FMLA requirements. Request a free demo of our software to learn more about how it can help maintain compliance within your HR team.