December 31, 2002
Re: Hours of service under FMLA
Dear Human Resources Director:
You asked several questions about the application of the federal Family and Medical Leave Act to an employment situation in your City. You indicated that for purposes of FMLA, the City uses the calendar year for the required 12-month period. Here are the questions and the answers revealed by my research:
1. May an employee who has used the maximum 12 weeks at the end of this calendar year use another 12 weeks beginning on January 1, 2003? The answer is yes if the employee worked the required 1,250 hours in 2002. 29 U.S.C.A. § 2611(2)(A) provides that an employee is eligible for leave under FMLA if he/she “has been employed (i) for at least 12 months by the employer with respect to whom leave is requested ... and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” Therefore, if the employee worked for the required 1,250 hours in 2002, he/she would be entitled to 12 weeks of leave under the Act in 2003. The regulations adopted by the Department of Labor to implement FMLA confirm this. 29 C.F.R. § 825.200(c) provides that under the calendar year method, “an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year.”
2. Does paid or unpaid leave count in determining whether the employee worked the required 1,250 hours in the previous year? The answer is no. FMLA provides in 29 U.S.C.A. § 2611(2)(C) that in determining whether the employee has met the hours of service requirement, the legal standards established under § 207 of Title 29, part of the Fair Labor Standards Act, will apply. 29 U.S.C.A. § 207(e)(2) excludes “occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause ....” Although there have apparently been no Sixth Circuit cases interpreting this language, there have been several district court cases and one federal appeals court case that hold that only those hours actually worked count in determining whether the employee meets the 1,250 hour requirement. See Plumley v. Southern Container, Inc, 303 F.3d 364 (1st Cir. 2002); Nelson v. City of Cranston ex rel. McAteer, 116 F.Supp.2d 260 (D.R.I. 2000); Caruthers v. Proctor and Gamble, 961 F.Supp. 1484 (D. Kan. 1997); Rich v. Delta Airlines, 921 F. Supp. 767 (N.D. Ga. 1996); Robbins v. Bureau of National Affairs, 896 F. Supp. 18 (D.D.C. 1995). There is no good reason to believe that the Sixth Circuit or district courts here would reach a different conclusion based on the statutory language.
3. May the City provide greater benefits than FMLA requires? Yes, 29 C.F.R. § 825.700 specifically recognizes that an employer may provide greater benefits than those required by FMLA. If the City decided to do this, the Board should adopt a policy that would be applied even-handedly to all eligible employees.
I hope this answers your questions. If you need further information, please call. I will also fax you copies of the relevant statutory and rules provisions.