Does COVID-19 Furlough Impact FMLA Eligibility?

Unless and until New Hampshire enacts its own family-medical leave law, the federal Family Medical Leave Act [FMLA] remains the exclusive source of entitlement for New Hampshire workers to take illness (not workers compensation or disability) related leave from work.

To be eligible for FMLA leave entitlement, and employee must: (1) work 1,250 hours during the 12 months prior to the start of leave, (2) work at a location where 50 or more employees work at that location or within 75 miles of it, and (3) have worked for the employer for 12 months. Whereas ordinarily prong 1 has been easy for employees to satisfy, Covid-19 furloughs have impacted prong 1 eligibility, leaving employees recalled from furlough effectively without FMLA leave entitlement for some time.

Imagine for example an employee who in January 2021: needs to take leave due to a serious injuries suffered in a car accident; who has worked for a decade for a large employer; and who ordinarily works “full time” at 32 hours a week. In an ordinary 12 month or 52-week period, the employee could work as much as 1,669 work hours, easily surpassing the FMLA’s 1,250 work-hour threshold. But, if the employee were to have been furloughed in March 2020, recalled in August 2020, and to have become injured in January 2021, this employee would probably not be eligible for FMLA leave. 8 months of actual work time in the 12 months preceding January 2021, in this scenario, translates to only an estimated 969 hours, short of the 1,250 hour FMLA qualifier.

If you have a question about leave eligibility, contact our office at 1-800-240-1988 or fill out our online contact form for a free consultation.

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