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    Many employers and employees are under the mistaken assumption that the Family and Medical Leave Act (FMLA) applies to all employers and employees.  In fact, the FMLA applies only to employers that have a worksite with 50 or more employees within a 75 mile radius.  In addition, even if an employer is covered by the Act, individual employees might not be eligible for coverage.

                Under the FMLA, an eligible employee is entitled to 12 weeks of FMLA leave within a 12-month period designated by the employer.  For an employee of a covered employer to be covered, the employee must have been employed by that employer for at least 12 months.  Those 12 months do not need to be consecutive.  Months worked in previous periods of employment must be counted, unless there has been a break in service of more than 7 years.  In addition to the 12-month rule, an employee must have worked for that employer for at least 1,250 hours over the last 12 months.  Unlike the 12-month rule, the 1,250 hours must be consecutive.

                Once an employee is determined to be eligible under the 12-month and 1,250-hour rules, the employer must then determine if there is a “qualifying reason” for FMLA leave.  There are several qualifying reasons covered by the Act, the most common of which is a “serious health condition.”  In order to be considered a serious health condition, the condition must require either inpatient care or continuing treatment by a health care provider.  A bad cold or flu, for example, that does not fit those criteria would not be a serious health condition.

                Another eligibility consideration relates to remote workers.  When an employee is working from home, that employee’s residence is not the FMLA worksite. Their worksite is considered to be the office to which employee reports and from which they receive assignments. 

                Employers must carefully consider all the eligibility requirements before making a determination of whether FMLA leave is appropriate.