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Employee Eligiblity
An employee is eligible for family and medical leave if he/she:
There is no similar provision for CFRA leave. For CFRA-only leave or leaves where FMLA/CFRA run concurrently, a break in service, no matter how long, will not impact an employee’s eligibility if he/she worked for the employer for a total of 12 months. If an employee is eligible for family and medical leave and takes less than the full amount of leave allowed, he/she need not re-qualify in terms of the number of hours worked to take additional leave for the same reason as the first leave. The employee also is entitled to take additional leave for the same reason as the first leave even if fewer than 50 employees now work at his/her worksite or within a 75-mile radius. If the additional leave is requested for a different reason than the original leave, the employee must re-qualify (for example, first six weeks of leave was for care of a newborn, but additional leave is requested for the employee’s own illness).
Does the Employee Work at an Eligible Worksite or Within 75 Miles? The question often arises as to how an employer can determine if it has 50 or more employees at a “worksite” or within 75 miles of the worksite. The determination of how many employees are employed within 75 miles of the worksite is based on the number of employees maintained on the payroll. The number is determined at the time the employee gives notice of the need for leave. An employer may not terminate a leave that has already started if the employee count drops below 50.
According to federal regulations, which will also apply to the state leave law, an employee’s “worksite” will generally be the site the employee reports to, or, if none, from which the employee’s work is assigned. A worksite usually refers to a single location or a group of contiguous locations - such as a campus or industrial park. Separate buildings or areas that are not directly connected or in immediate proximity may still be a single worksite if they are in reasonable geographic proximity, used for the same purpose, and share the same staff and equipment. An example is given of an employer that manages a number of warehouses in a city but regularly shifts the same employees from one warehouse to another. The multiple warehouses would be considered a single worksite. Not all employees regularly report to one worksite. Employees such as salespeople, home health care workers, telecommuters and construction workers may report to several locations. If an employee does not have a fixed worksite, the “worksite” is either:
The regulations give the following as an example: A construction company has headquarters in New Jersey. It opens a construction site in Ohio and sets up a mobile trailer on the site as its office for the project. The construction site in Ohio is the worksite for employees hired locally who report to the trailer daily for work assignments. But, if the company also sends job superintendents or an office manager from New Jersey to the job site in Ohio, those workers report to the New Jersey headquarters and that location is their worksite. The 75-mile distance is measured by surface miles, using the shortest route from the facility where the employee needing leave is employed.
FMLA and Flight Crews. The Airline Flight Crew Technical Corrections Act amends the FMLA to ensure that pilots and flight attendants qualify for FMLA benefits to the same extent as other U.S. employees. To account for the airline industry’s unconventional timekeeping practices, the act amended Section 101(2) of the FMLA to allow a flight attendant or flight crew member to meet the hours of service requirement if he/she worked or was paid for the following:
- Works for a covered employer
- Worked for the employer for at least 1,250 hours in the 12 months preceding the start of the leave
- Works at a worksite where the employer employs 50 or more employees either at the worksite or within 75 miles of the worksite
- Worked for that employer for at least 12 months, although the time need not be consecutive. If the leave is for FMLA-only, the 12 months need not be consecutive — if the employee has not had a break in service from the employer for a period of seven years or more. For example, an employee worked for an employer in 2004 for five months, then returns to work for the employer in January 2012. He requests FMLA-only leave for a qualifying exigency in August 2012. He is not yet eligible for FMLA, because his break in service lasted longer than seven years and he has not worked for the employer for a total of 12 months.
There is no similar provision for CFRA leave. For CFRA-only leave or leaves where FMLA/CFRA run concurrently, a break in service, no matter how long, will not impact an employee’s eligibility if he/she worked for the employer for a total of 12 months. If an employee is eligible for family and medical leave and takes less than the full amount of leave allowed, he/she need not re-qualify in terms of the number of hours worked to take additional leave for the same reason as the first leave. The employee also is entitled to take additional leave for the same reason as the first leave even if fewer than 50 employees now work at his/her worksite or within a 75-mile radius. If the additional leave is requested for a different reason than the original leave, the employee must re-qualify (for example, first six weeks of leave was for care of a newborn, but additional leave is requested for the employee’s own illness).
Does the Employee Work at an Eligible Worksite or Within 75 Miles? The question often arises as to how an employer can determine if it has 50 or more employees at a “worksite” or within 75 miles of the worksite. The determination of how many employees are employed within 75 miles of the worksite is based on the number of employees maintained on the payroll. The number is determined at the time the employee gives notice of the need for leave. An employer may not terminate a leave that has already started if the employee count drops below 50.
According to federal regulations, which will also apply to the state leave law, an employee’s “worksite” will generally be the site the employee reports to, or, if none, from which the employee’s work is assigned. A worksite usually refers to a single location or a group of contiguous locations - such as a campus or industrial park. Separate buildings or areas that are not directly connected or in immediate proximity may still be a single worksite if they are in reasonable geographic proximity, used for the same purpose, and share the same staff and equipment. An example is given of an employer that manages a number of warehouses in a city but regularly shifts the same employees from one warehouse to another. The multiple warehouses would be considered a single worksite. Not all employees regularly report to one worksite. Employees such as salespeople, home health care workers, telecommuters and construction workers may report to several locations. If an employee does not have a fixed worksite, the “worksite” is either:
- The site to which the employee is assigned as their home base;
- The site from which the employee is assigned work; or
- The site to which they report.
The regulations give the following as an example: A construction company has headquarters in New Jersey. It opens a construction site in Ohio and sets up a mobile trailer on the site as its office for the project. The construction site in Ohio is the worksite for employees hired locally who report to the trailer daily for work assignments. But, if the company also sends job superintendents or an office manager from New Jersey to the job site in Ohio, those workers report to the New Jersey headquarters and that location is their worksite. The 75-mile distance is measured by surface miles, using the shortest route from the facility where the employee needing leave is employed.
FMLA and Flight Crews. The Airline Flight Crew Technical Corrections Act amends the FMLA to ensure that pilots and flight attendants qualify for FMLA benefits to the same extent as other U.S. employees. To account for the airline industry’s unconventional timekeeping practices, the act amended Section 101(2) of the FMLA to allow a flight attendant or flight crew member to meet the hours of service requirement if he/she worked or was paid for the following:
- At least 60 percent of the applicable total monthly guarantee, or the equivalent for the previous 12-month period for or by the employer from whom leave is requested.
- A minimum of 504 hours, not counting personal commute time, time spent on vacation leave or medical or sick leave, during this period.