The Leave Blog – Understanding When Your Employees Are “Eligible”

We have recently been focusing on eligibility for family and medical leave, and looking closely at the employer side of the equation.  In our last posts we have examined how different scenarios impact the employer’s obligations to provide leave under FMLA and OFLA.  It’s now time to shift our focus to employees, and to look at how they are evaluated for purposes of determining eligibility for FMLA and OFLA leaves. 

Both FMLA and OFLA have a two-part test to determine when an employee becomes eligible to assert rights under the acts.  In the case of FMLA, generally the employee must have worked for the company for at least 12 months, not necessarily consecutively, within the prior seven years.  This is often called the ’duration of emloyment’ test.  FMLA also requires that the employee have worked at least 1,250 hours during the 12-month period preceding the leave.  This is generally called the ‘hours of work’ test.  Typically, the duration of emloyment test must be met only once, but the hours of work test can (and should) be evaluated regularly, particularly where the employee’s attendance history raises some concern about whether he or she has worked enough hours to still qualify for leave.

In Oregon, the OFLA test for employee eligibility is quite different, and is focused on the employee and the type of leave.  For parental leave, the employee must only have been employed for at least 180 days before the leave begins.  For all other types of leave covered by OFLA, including pregnancy disability leave, a two-part test is applied.  First, the employee must have worked for the company for at least 180 days before the leave begins (duration of employment).  Second, the employee must have worked an average of at least 25 hours per week during the prior 180 days (hours of work). 

This sounds simple enough, particularly given that both FMLA and OFLA use a similar rule to evaluate the ‘duration of employment’ element of eligibility.  Under both acts, if the employee’s name appears on the company’s payroll, regardless of whether pay is received, the time is counted toward eligibility.  Where things become more complicated is in applying the ‘hours of work’ standard, particularly when the employee has had events occur that interrupt his or her normal work schedule.  We will examine this standard and the nuanced counting rules that apply to it in next week’s blog post, so stay tuned. 

This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.