Q: We recently had several employees apply for FMLA. Two of them are at least 100 hours short of the minimum 1,250-hour requirement but for different reasons. In an attempt to accommodate the first employee’s health issues, we gave quite a bit of leave under their ADA/ADAAA. For the second employee, he missed some time because he is a National Guard member and was called to active duty. Is this ok?
A: In general, the FMLA is calculated on an hours-worked basis. Time off, such as for FMLA or ADA/ADAAA accommodations, in general does not count towards the 1250-hour threshold.
The National Guard member is in a different position. USERRA and the DOL both indicate that time spent in active service does apply to the FMLA threshold amount - at least in a circumstance of this type.
