Decision shakes up FMLA ‘eligible employee’ rules

Most employers are familiar with the federal Family and Medical Leave Act’s requirement that an “eligible employee” is entitled to up to 12 weeks of leave per year if the leave is taken for a qualifying reason. But just who is an “eligible employee?”

A recent decision by the 1st Circuit Court of Appeals may have further muddied the waters in this already difficult to navigate area of the law.

In Rucker v. Lee Holding Company, Kenneth Rucker worked as a salesman for Lee Auto Malls in Maine. After five years, Rucker voluntarily ended his employment, but he rejoined Lee five years later.

Seven and a half months after rejoining Lee, Rucker ruptured a disk in his back and took medical leave. Approximately six weeks later, after Rucker had missed work for a total of 13 days and was still out on medical leave, Lee terminated Rucker’s employment. Rucker subsequently brought suit against Lee, alleging that he had been discharged in violation of the FMLA for taking medical leave.

The FMLA defines an “eligible employee” as someone who has been employed for at least 12 months by the employer from which leave is sought, and who has worked at least 1,250 hours for the employer during the previous 12-month period.

In the Rucker case, there was no dispute that Rucker had worked over 1,250 hours since rejoining Lee. The question was whether Rucker could count his previous employment with Lee toward the 12-month requirement. Because Rucker had only been re-employed by Lee for 7-1/2 months at the time of his injury, he would not be eligible for FMLA leave unless his previous employment could be used to satisfy the 12-month employment requirement.

After the U.S. District Court in Maine dismissed Rucker’s lawsuit based on its finding that he could not combine periods of nonconsecutive employment to satisfy the 12-month requirement, Rucker brought his case to the 1st Circuit Court of Appeals.

The 1st circuit overturned that ruling, holding that the complete separation of an employee from his/her employer for a period of five years does not necessarily prevent the employee from using periods of previous nonconsecutive employment toward satisfying the 12-month requirement.

Interestingly, the U.S. Department of Labor submitted a friend of the court brief arguing that a five-year gap in employment should be the “outer bounds” for when previous employment can be counted toward the 12-month requirement.

The 1st circuit, however, set no limit with regard to counting periods of previous employment. The court simply stated that a five-year separation from employment would not prevent an employee from counting previous periods of employment with the same employer in order to satisfy the 12-month employment requirement, leaving employers to wonder how far back an employee can go.

Employers will need to consider previous nonconsecutive periods of employment in determining whether an employee has met the 12-month requirement necessary to be eligible for FMLA protections. Previous periods of employment should be considered, even if the employee has been separated from the employer for an extended period of time (at least five years, perhaps even longer) and the employee secured other employment during the break in service.

In order to comply with the requirement, employers also should check their record retention policies to ensure that records of breaks in employment are maintained and provided to the person or department making decisions about an employee’s FMLA eligibility.

Many employers have employment applications that require applicants to list any previous periods of employment with the employer. If an applicant lists previous periods of employment with the company, these periods should be considered in determining FMLA eligibility. If an employer does not require this information on an employment application, the employer should obtain this information from every employee at the time of hire and note it in the employee’s personnel file.

Employers also should review references to FMLA eligibility requirements in their employee handbooks, notices, publications and other communications to see if any applicable language needs to be amended or clarified.

For now, the Rucker decision is the law in New Hampshire, Maine, Massachusetts, Rhode Island and Puerto Rico. Since the DOL is in the process of reexamining its FMLA regulations, employers should stay tuned to see whether any nonconsecutive employment language makes its way into the definition of an “eligible employee.”

Marla B. Matthews, an associate with the Concord-based law firm of Gallagher, Callahan & Gartrell, is a member of the firm’s multidisciplinary team, assisting business clients with regulatory matters and labor and employment issues.