The FMLA requires an employer to return an employee to their same or an equivalent job at the conclusion of FMLA leave. To take FMLA leave an employee must meet certain eligibility requirements. Whether an absence is covered by the FMLA and, therefore, entitles an employee to job restoration, will depend, in part, on whether the employee meets the eligibility requirements for FMLA leave. Critical to this determination is the point in time when eligibility is assessed.
In Adly v. Supervalue, Inc., No. 06-CV-5108 (PJS/RLE), 2007 U.S. Dist. LEXIS 57011 (D. Minn. Aug. 3, 2007), Adly went on short term disability leave on January 24, 2006. At the time he had worked for his employer for 10 months. He would meet the 12-month eligibility requirement on March 28. Adly did not seek to return to work until April 10. Supervalue argued that Adly was not eligible for FMLA leave because he did not meet the 12-month eligibility requirement at the commencement of his leave on January 24, 2006, as required by 29 CFR 825.110(d). As such, Supervalue did not violate the FMLA when it refused to return him to work because his absence was not covered by the FMLA and, therefore, he had no FMLA right to return to work.
Adly argued that his eligibility should be assessed as of March 28, the date he became eligible while absent from work. Adly argued that on March 28, the period of leave that commenced on January 24 was transformed by operation of law from non-FMLA leave leave to FMLA leave. Adly based his argument on 29 CFR 825.110(b), which provides that periods of leave such as sick time and vacation time count towards the 12-month eligibility threshold under the FMLA. Adly argued that he became eligible for FMLA leave on March 28. The court agreed that, had Adly returned to work on March 28 and asked for leave on March 29, he would have been eligible. The court, however, rejected Adly's argument that his absence beginning January 24 was transformed because he reached 12 months of employment during his absence.
The court explained:
Adly's leave, however, was uninterrupted. It was a single period of leave, taken for a single purpose -- a purpose that in no way changed during the course of the leave. Under 825.110(d), courts must characterize a period of leave, for FMLA purposes, at the front end. An unbroken leave taken for a single purpose does not change its character in the midst of the leave just because the employee becomes eligible under the FMLA. Accordingly, the Court finds that Adly never took FMLA leave. He thus did not have a right of reinstatement under the FMLA.
Comment: To be eligible for FMLA leave, an employee must meet 3 requirements: (1) worked for the same employer for at least 12 months; (2) worked at least 1250 hours; and (3) is employed at a worksite where there is at least 50 employees within 75 miles.
The 12-month and 1250 works eligibility requirements as of leave commencement. Leave commencement is the first absence from work due to the same underlying covered condition each leave year. Where leave is taken in a single, uninterrupted block of time, eligibility is determined as of the first missed day of work. The fact that the employee meets the eligibility requirements during the unbroken absence does not transform the leave, in whole or in part, from non-FMLA to FMLA leave.
Similarly, where leave is taken on an intermittent basis (i.e, more than one absence for the same underlying condition during a 12-month leave year), eligibility is determined as of the first absence in the series.