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May 01, 2011
FMLA Laws and ADA Laws: What Determines Employee Eligibility?

Do your supervisors know how to determine whether an employee is eligible for a leave of absence under the Family and Medical Leave Act (FMLA)? Do they know how to determine if an employee is eligible for protection under the Americans with Disabilities Act (ADA)? Here are some guidelines:

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Under the ADA, the individual must be a qualified individual with a disability who can perform the job with or without reasonable accommodation. Part-time employees are covered by the ADA.

Under the FMLA, the main question of eligibility is around the time/hours worked. The employee in question must have worked for the employer for a total of 12 months (which need not be consecutive) and for a total of 1,250 hours in the most recent 12 months, counting backward from the date of the leave request. Part-time employees are covered if they meet the 12-month/1,250-hour test and work at a site that meets minimum size requirements. An employee working year-round will meet the 1,250-hour requirement if he or she is averaging 25 hours or more per week.

It is important to note that the 12-month service requirement does not require consecutive months of service. It includes periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits).

For the purposes of determining whether a week is a "workweek" for an employee, it can be determined with payroll records. An employee is counted as having worked during a workweek if he or she was on the payroll for any part of that week.

With all of these guidelines for the employee, it is important to remember there are also guidelines that determine which employers have to follow the FMLA laws. In FMLA, there is a minimum worksite size requirement. An employee must work at a worksite with 50 or more employees within a 75-mile radius in order to be eligible for the FMLA. The worksite employee count is made when the employee requests leave, not when the employee begins leave (unlike the minimum service and hours requirements).

Whether or not an employer is covered is a major issue. The 50-employee requirement for employee eligibility is separate and distinct from the 50-employee requirement for employer coverage. It is possible for an employer to have 50 or more employees and still have employees who are ineligible to take leave because they work at a site that is too small to satisfy the minimum worksite size requirement. For example: XYZ Convenience Stores Inc. employs 1,500 workers nationwide. XYZ is a covered employer under the FMLA. However, XYZ has only one store in Idaho, with five employees. The next nearest XYZ Convenience Store is 300 miles away. XYZ does not have to grant FMLA leave to any of its Idaho store workers, regardless of the hours they have worked, because they fail to meet the minimum worksite size requirement. On the other hand, in the densely populated New York metropolitan area, XYZ has 22 stores, all within a 75-mile radius of one another. All 110 employees of these stores satisfy the worksite requirement of the Act, and provided they have worked the requisite hours and months, are eligible for FMLA leave.

The above information comes from BLR’s presentation "Understanding the Interplay Between FMLA and ADA." For more information on all the training courses BLR has to offer, go to our Employee and Manager Training page.

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