FMLA FAQ: Can an Employer Credit Pre-FMLA Leave Against an Employee's FMLA Entitlement When the Employee Becomes Eligible?

Franczek P.C.

Q. We provide our employees “non-FMLA” leave after they have worked for us for six months. They are given up to six weeks off during that time if it can be certified by a physician. Since these employees are not eligible for FMLA leave at this point, can we credit the time they took off against their allotment for the following FMLA year as soon as they become eligible for FMLA leave?

A. First of all, good for you for offering this benefit to your employees. However, the Department of Labor is not going to give you a big pat on the back. In the FMLA regulations, it is clear (if it wasn't before) that an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave. This is true even if the employee otherwise suffered from a serious health condition that would have been covered by the FMLA had he or she otherwise been eligible. This situation is covered, in part, by the following regulation...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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