Employers often misunderstand the Family and Medical Leave Act's (FMLA's) definition of an employee who is eligible for FMLA leave, and they can't figure out when the worker has a qualifying reason for the time off. Here are some tips on making FMLA eligibility determinations in line with the law.
"Many businesses simply assume they have to offer their employees FMLA [time off], but that is simply not true," said Kelly Koster, an attorney with Munsch Hardt in Houston. "It is estimated that only about 50 percent of U.S. employees are covered by the FMLA."
FMLA eligibility requires the employee to meet a three-part test:
When checking FMLA eligibility, employers should be guided by two principles, said Jeff Nowak, an attorney with Littler in Chicago. First, the employer must check eligibility at the first instance of FMLA leave for each different qualifying reason in the employer's 12-month FMLA period. An eligible employee with a qualifying reason is entitled to 12 weeks of leave in a 12-month period. Employers may choose one of four different methods, including the popular rolling or look-back method, to calculate that period, so long as the method is applied consistently to all employees. Second, after eligibility is established for that particular FMLA reason, eligibility for FMLA leave as to...
On September 18, 2026, the Department of Justice (DOJ) issued a press release announcing two revisions to the Justice Manual—which publicly sets forth internal DOJ policies and procedures—concernin...