What should an employer do if an employee notifies it of his or her need to take Family and Medical Leave Act (FMLA) leave, but the employee has not met the FMLA's eligibility requirements?

Author: Demetrius O. Holloway, Stites & Harbison

The employer must provide the employee the Rights and Responsibilities Notice and the Eligibility Notice. The Eligibility Notice should state the reason why the employee is not eligible, such as not enough months employed by the employer, not enough hours of service worked during the previous 12-month period or not employed at a work site where 50 or more employees are employed by the employer within 75 miles.

An employer should be careful when assessing an employee's eligibility under the FMLA. An employer should make the calculation as of the date the leave is to begin (not when the request is made). If the employer terminates the employee in order to avoid having to provide the employee with his or her FMLA leave rights, the employee may be able to bring an FMLA interference claim.

In addition, if an employer grants leave before the employee becomes eligible for the FMLA, any leave the employee takes cannot be counted against the employee's FMLA allotment, as a leave of absence may only be designated as FMLA leave after the employee meets the FMLA's eligibility requirements.