FMLA Eligibility

The Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with unpaid, job-protected leave for qualifying family and medical reasons. To qualify for FMLA leave, both the employer and the employee must meet the law’s coverage and eligibility requirements.

Covered employers
Private-sector employers are generally covered by the FMLA if they employ 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year.

Public agencies, including Tennessee cities, counties, state agencies, and other local-government entities, are covered by the FMLA regardless of the number of employees. Public and private elementary and secondary schools are also covered regardless of size. 

Eligible employees
Although cities are covered FMLA employers regardless of size, an individual employee must generally meet all of the following requirements to be eligible for FMLA leave:

1. Have worked for the city for at least 12 total months. The months do not have to be consecutive.
2. Have worked at least 1,250 hours during the 12 months immediately before the requested leave begins.
3. Work at a location where the city employs at least 50 employees within 75 miles of that worksite.

The 50-employees-within-75-miles rule applies to public-agency employees as well as private-sector employees. As a result, a city may be a covered FMLA employer but have no individual employees who qualify for statutory FMLA leave because the city does not employ at least 50 employees within 75 miles of the employee’s worksite. The 75-mile distance is measured by surface miles using the shortest route from the employee’s worksite to the other worksite where city employees are employed. It is not measured as a straight-line radius.

For a teleworking or hybrid employee, the FMLA worksite is generally the city location to which the employee reports or from which the employee receives assignments. The employee’s home is not ordinarily the FMLA worksite.

Prior service and breaks in employment
Prior employment with the city generally counts toward the 12-month employment requirement if the employee’s break in service was seven years or less.

A city generally does not have to count service before a break lasting more than seven years. However, the city must count the earlier service when:

• The break was caused by the employee’s fulfillment of National Guard, Reserve, or other military-service obligations.
• A written agreement, including a collective-bargaining agreement, states that the city intended to rehire the employee after the break.
• A city may voluntarily count service before a break of more than seven years, but it should apply that practice consistently.

Temporary-agency service
Time worked through a temporary staffing agency may count toward the 12-month service requirement when the staffing agency and the city are joint employers under the FMLA. Joint-employment status depends on the facts of the relationship, including which entity controls the employee’s work, assignments, pay, supervision, and employment conditions.

Same-sex spouses
Under the FMLA, “spouse” includes a husband or wife in a legally valid marriage, including a same-sex marriage. The FMLA uses a place of celebration rule, meaning that a legally valid marriage is recognized regardless of the state in which the employee lives. An eligible employee may take FMLA leave to care for a same-sex spouse, the spouse’s parent, or a qualifying child of the marriage when the other FMLA requirements are met.

Practical  guidance
Before designating leave as FMLA leave, HR should confirm:

• The city is a covered employer.
• The employee has at least 12 months of qualifying service.
• The employee has worked at least 1,250 hours in the previous 12 months.
• The employee’s worksite has at least 50 city employees within 75 surface miles.
• Any prior service, military service, temporary-agency service, or written rehire agreement has been properly considered.
• The employee meets the requirements for the specific type of leave requested.

Other rights may apply under city policy, a collective-bargaining agreement, the ADA, the PWFA, workers’ compensation law, or another law even if the employee is not eligible for statutory FMLA leave.