FMLA leave is available to an employee who has been employed (1) for at least 12 months by the employer with respect to whom leave is requested; (2) for at least 1,250 hours by the employer with respect to whom leave is requested; and (3) the employee must be employed at a work site where there are at least 50 employees of the employer within 75 miles.
In Thomas v. Mercy Mem. Health Center, Inc., No. CIV-07-022-SPS, 2007 U.S. Dist. LEXIS 64184 (E.D. Ok. Aug. 29, 2007), Thomas worked for the Hospital from January 2002 through May 2003, and from April 2004, until she was fired in January 2005. All told, Thomas worked intermittently for the Hospital for more than 12 months. Thomas argued that she was fired for being absent for leave that should have been covered by the FMLA.
The Hospital argued that Thomas was not eligible for FMLA leave because she had not worked for the hospital for 12 consecutive months prior to the date her leave would have commenced. The Hospital argued that its position was supported by a common sense reading of the statute. It argued that, because the statute is unambiguous, the DOL regulation (29 CFR 825.110(b)), which provides that the 12-month period need not be consecutive, is invalid. The Hospital also relied on the opinion of the district court in Rucker v. Lee Holding Co., 419 F. Supp. 2d 1 (D. Ma), rev'd, 471 F.3d 6 (1st Cir. 2006). In that case, the district court found that an employee could not combine his most recent employment with his previous years of service, which ended five years before, for purposes of the 12-month requirement.
The Court found that the FMLA does not require 12 months of consecutive or continuous employment immediately preceding leave commencement in order to satisfy the 12-month FMLA eligibility requirement. In so holding, the Court agreed with the decision of the Circuit Court in Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006). If Congress had wanted the 12-month eligibility requirement to be 12 consecutive or continuous months immediately preceding leave commencement, the Court found that it could have easily done so. The Court denied the employer's motion to dismiss the employee's FMLA claim.
Comment: For purposes of the 12-month eligibility requirement, the FMLA does not require employment for 12 consecutive months immediately preceding the commencement of FMLA leave. The employer in this case attempted to apply the same standard for the 12-month eligibility requirement as is applied for the 1,250-work hours requirement.