This is an important update from our Spring 2006 newsletter, which reported on a Federal District Court decision regarding eligibility under the federal FMLA.

In order to be eligible for leave under the federal FMLA, an employee with a serious health condition has to have worked for the employer for 12 months and for 1250 hours during the prior 12 month period. The issue in the case we discussed last spring was whether an employee could count time worked for the employer when there was a substantial break in his employment. The District Court held in that case that an employee has not met the 12 month employment eligibility requirement if the employment is not consecutive and there was no ongoing relationship between the employer and employee.

On appeal, the First Circuit Court of Appeals recently reversed this holding.

The case at issue involved an employee of the Lee Holding Company. The employee, Rucker, worked for Lee for approximately five years. He then left his employment for five years, returning in June 2004. In January 2005, he injured his back. Between lost time and medical treatment, he missed 13 days of work between the injury date and March 2005. On March 7, he was terminated for excessive absences. He filed a lawsuit alleging a violation of the federal FMLA on the basis that he was terminated for taking medical leave under that Act.

Lee filed a motion to dismiss the claim on the basis that Rucker was not eligible for FMLA time because he had not been employed for at least twelve months at the time the leave commenced. Rucker agreed he had only been employed for seven months at the time of his termination. However, he argued the five years he worked for Lee in the past had to be included as though he had been continually employed for purposes of determining his FMLA eligibility.

Rucker relied on the regulations interpreting the FMLA, which state that the "12 months an employee must have been employed by the employer need not be consecutive months." Although the Federal District Court read this differently, the First Circuit agreed with the employee. It held that the intent of the regulation was to allow an employee to count his or her prior employment service, even if there was no continuing relationship between the employee and employer during the break from employment.

". . . the intent of the regulation was to allow an employee to count his or her prior employment service, even if there was no continuing relationship between the employee and employer during the break from employment."

This is clearly a troublesome result. It happens that the Department of Labor has a call out for comments or suggestions on the way in which the Act and its regulations are applied, specifically in the areas of the definition of "serious health condition", eligibility requirements (which is where this issue falls), waiver, and leave determinations/medical certifications. If you are interested in providing the DOL with comment about this decision or any other issue within in the areas mentioned above, you must do so by 5:00 pm EST on February 2, 2007. Written comments should be submitted to:

Richard M. Brennan, Senior Regulatory Officer
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor,
Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210.

Electronic comments may be submitted to whdcomments@dol.gov. Comments of 20 pages or less may be submitted by FAX Machine to (202) 693-1432 (not a toll-free number)

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.