In order to qualify for FMLA leave, an employee must have worked for a minimum of 1250 hours and for a period of at least twelve months. When calculating whether an employee has met the minimum time threshold, an employer must include any time worked as a temporary employee. The relevant Federal Regulation states that “(w)here the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist…” See 29 C.F.R. 825.106.
If an employer feels that an employee is abusing FMLA leave without a qualifying condition, an employer may seek medical certifications and recertifications as well as second and third options by medical care providers. However, an employer should not terminate the employee without prior inquiry. Whether or not the employer honestly believed that the employee was ineligible for FMLA is NOT a defense to a claim of FMLA interference. See Xin Liu v. Amway Corp., 347 F.3d 1125 (9th Cir. 2003); Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001)
Other Topics Covered Included:
- FMLA Employer Notice Requirements
- Same Sex Marriage And How It Relates To FMLA Leave
- Other Tips For Preventing FMLA Leave Abuse
- FMLA and ADA Crossover Issues
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