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

When an employee requests time off that qualifies, or may qualify, as FMLA leave, the employer must notify the employee whether the employee is eligible for FMLA leave within five business days of the employee's request or the employer acquiring knowledge that an employee's leave may be for an FMLA-qualifying reason. An employer may use the Department of Labor's WH-381 Notice of Eligibility and Rights & Responsibilities Form to fulfill its obligation.

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. If the employer terminates the employee in order to avoid having to provide the employee with 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.