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Two months ago, you re-hired an employee who had been away from the company for one year. Prior to this break in service, she had worked for your company for two years. The employee is now requesting leave under the Family and Medical Leave Act (FMLA). Must you count the two-year employment period preceding the break in service to determine whether she is an “eligible employee” under the FMLA?
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Answer: |
In this case, yes. The 12 months an employee must have been employed by the employer to be an eligible employee need not be consecutive months. However, employment periods prior to a break in service of seven years or more generally do not need to be counted, except where:
- the employee’s break in service is occasioned by the fulfillment of his or her National Guard or Reserve military service obligation. The time served performing the military service also must be counted in determining whether the employee has been employed for at least 12 months by the employer, or
- a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes).
Cite: DOL Reg. §825.110(b)(1) and (2), effective January 16, 2009.
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