When you as an employee request FMLA leave of your employer, you must have “actually worked” 1,250 hours for the employer within the preceding twelve (12) months. Hours “actually worked” include only hours: a.) that you are on duty; and b.) hours that your employer suffers or permits you to work. The United States Department of Labor has clarified that paid leave and unpaid leave, including FMLA leave, cannot be counted to reach the 1,250 hours.
The 1,250 hour requirement may pose a problem for some employees who find themselves needing to request FMLA leave in 2021. Time periods when an employee was furloughed, and time periods when an employee is prevented from working due to reasons related to COVID-19, do not constitute hours “actually worked” for purposes of determining FMLA eligibility.
If you are an exempt (or salaried) employee, however, the onus is on your employer to prove that you did not work sufficient hours in the past year to qualify for FMLA leave, not on you to prove that you did. Employers rarely maintain records of hours worked for salaried employee. Where an employer fails to maintain accurate records of an employee’s hours worked, the employer bears the burden of showing that the employee has not worked the requisite hours.
If you have questions about whether your employer is honoring your employee rights, you should consult an experienced employee rights attorney such as Benjamin T. King of Douglas, Leonard & Garvey. Attorney King has been ranked in the top 5 % of New England attorneys representing employees in employment discrimination cases, continuously since 2014. Call us at 1-800-240-1988 or fill out our online contact form.