Under Title I of the FMLA, to be eligible for FMLA leave an employee must have worked at least 1250 hours in the 12-month period preceding the commencement of FMLA leave. 29 USC 2611(2)(A)(ii).
In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (7th Cir. April 2, 2010), it was uncontested that the employee did not meet that test for the two absences that formed the basis of her termination. That is, measured from those absences, Bailey did not work the requisite 1250 hours in the preceding 12-month period. She argued, however, that she was eligible because she was entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave. In so doing, Bailey argued that she was entitled to add the time she worked during the 56-day period prior to the start of the 12-month period at issue, thereby extending the 12-month period from the commencement of the leave at issue. With the addition of the time she worked during this 56-day period Bailey argued that she met the 1250 work-hours requirement.
In rejecting the argument, the Seventh Circuit opined:
There is no basis for such a contortion of the statute-- no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA have worked 1,250 hours in the preceding 12 months.
Comment: Absent a USERRA situation, it is well-established under Title I that leave, whether paid or unpaid, does not count towards the 1250 work-hours eligibility requirement. This is because the FMLA defines "hours worked" by cross reference to the Fair Labor Standards Act, which excludes leave. Undoubtedly aware of this, Bailey tried a creative end-run by raising the tolling argument in an attempt to extend the 12-month period which forms the base for calculating the 1,250 hours worked. A+ for effort.
Because it does not have the 1,250 work hours requirement, the decision does not apply to Title II of the FMLA.