SECTION 2: ELIGIBLE EMPLOYEES

An employee's eligibility is determined from the date the FMLA and/or CFRA leave is scheduled to begin, not the date of notice. An employee can request FMLA and/or CFRA leave before meeting the eligibility requirement as long as eligibility is met by the first day of leave.

Under FMLA and CFRA an eligible employee is one who meets the following criteria:

• Has completed an aggregate of 12 months of County service, which need not be consecutive

                      and

• Has worked at least 1,250 hours during the 12-month period immediately preceding the first day of leave.

12 Months of County Service Requirement

If an employee is in a paid status for any part of a week, including any period of paid (full-pay, sick leave, annual leave, Workers' Compensation, Short Term Disability (STD), etc.) or unpaid leave that week is counted as a week of service.

Temporary, recurrent and part-time employees are all eligible if the “length of service” and the “hours worked” requirements are met. No employee is excluded due to his or her employment status with the County.

The County is considered one employer for purposes of leave entitlement. Therefore, eligibility must be determined by counting all County service. Length of service and hours worked within all departments must be combined for the purpose of determining eligibility. The County does not need to count the time an employee worked for the County prior to a continuous break in service of seven years or more unless the break was for National Guard or Reserve military service obligation or a written agreement stating the County's intention to rehire the employee after the break.

An employee may be on non-FMLA and/or non-CFRA leave at the time he or she meets the FMLA and/or CFRA eligibility requirements. Once the employee meets the eligibility requirements, any portion of the leave taken for an FMLA and/or CFRA qualifying reason must be designated FMLA and/or CFRA leave.

EXAMPLE

Jennifer requested FMLA and/or CFRA to begin on March 15. Jennifer will have over 1,250 total hours worked on March 15 and she will meet the one year of County service requirement on March 20. Jennifer will be eligible for FMLA and/or CFRA leave effective March 20.

1,250 Hours of Work Requirement

FMLA and CFRA define “hours worked” as hours actually worked, which includes overtime.2 Hours shown on the payroll for non-worked leave such as sick leave, vacation, etc. are not hours worked.

Fair Labor and Standards Act (FLSA) exempt employees are presumed to have met the 1,250 hours of service unless otherwise indicated by accurate records of the employee's actual hours worked. For non-FLSA exempt employees, if the department has failed to maintain an accurate record of hours worked, the department has the burden of showing that the employee has not worked the requisite hours. In the event the department is unable to meet this burden, the employee is deemed to have met this requirement.

No one may intentionally limit or manipulate an employee's work schedule to deny the employee's eligibility for FMLA and/or CFRA. For example, part-time employees cannot have hours reduced to prevent them from being eligible for FMLA and/or CFRA leave. However, hours may be reduced for a bona fide business reason such as downsizing, restructuring or reduction in work load.

If the employee gives notice of the need for FMLA leave prior to meeting the “hours worked” test, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met.

EXAMPLE

On October 1, Nicole requests FMLA and/or CFRA leave to begin on November 1 Nicole has a total of 1,200 hours worked on October 1. She will have 1,250 hours by November 1, and therefore, is eligible for FMLA leave starting November 1.

2 The definition of hours worked is from the Fair Labor Standards Act (FLSA) and can be found at www.dol.gov

1,250 Hours of Work Requirement for Military Personnel

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires that returning veterans receive all benefits of employment that they would have obtained had they been continuously employed with the County, which includes FMLA. Accordingly, a returning service member will be entitled to FMLA leave if the hours that he or she would have worked during the period of military leave would have entitled the employee to FMLA leave. Therefore, in determining whether a veteran meets the FMLA eligibility requirement, the months employed and the hours that were actually worked for the County should be combined with the months and hours that would have been worked during the twelve months prior to the start of the leave had the veteran not been on military leave.