I Have an Employee With a Long-Term Chronic Condition. She’s Initially Eligible for FMLA Leave, but Can I Ever Reexamine Her Eligibility?

One of the more difficult situations in employee management that employers can face is dealing with long-term medical conditions that impact workplace performance and morale. There are a number of issues that arise with this issue, but let’s primarily focus on the Family and Medical Leave Act (FMLA).

Under the FMLA, eligible employees of covered employers (50+ employees) may be entitled to time off work for a long-term, chronic condition. On this, first, it is critical with any potential FMLA covered situation that we determine the employee’s eligibility for FMLA. Employees are eligible for FMLA if they have worked at least 1,250 hours in the year prior to taking the leave, have worked for the company for at least a year, there are 50 co-workers working within a 75-mile radius of their worksite, and their need for leave is covered by the FMLA. Let’s assume the condition in this question is a chronic condition covered by the FMLA. We then look at the other criteria. Notably, have they “worked” 1,250 hours? Work being actual work does not include paid or unpaid time off.

While a longer-term employee might have no problem meeting the initial eligibility criteria for FMLA, what about a year later? One nuance of the FMLA is that for chronic conditions with indefinite time periods for care, employers cannot reexamine the employee’s eligibility criteria until one year after the employee takes her first leave of absence for the chronic condition. The good news is that employers can reexamine the employee’s eligibility (they just need to wait). For example, Samantha has epilepsy and sees a doctor for treatment 2x/year, in accord with the FMLA requirements. She takes her full 12 weeks off, takes other vacations and some unpaid time off as well. Her first leave of absence, which you certified (on the Designation Notice) occurred on June 1, 2015. On June 2, 2016 she leaves work because of a seizure. You can reexamine her eligibility for FMLA, because the initial certification is more than a year old. If you examine Samantha’s time “working” in the one year period immediately preceding Samantha’s June 2, 2016 leave of absence and find that she did not “work” the necessary 1,250 hours, then she’s not an eligible employee under the FMLA for that leave on June 2, 2016.

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