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  1. #1
    Join Date
    Mar 2015
    Posts
    7

    Default Does FMLA Eligibilty Include a Prior Period of Employment

    Hello Everyone! I have a specific question I cannot find an answer to...

    I worked at a hospital for 3 years as a Secretary, left for 2 years to work as an LPN, and now I am returning to that same hospital to work as an RN. I have just found out that I am pregnant! My concern is I will only be working as an RN for 9 months before I have to go on maternity leave. Will I be eligible for FMLA because I did work there for 3 years in the past or will I not be eligible because 1st, it is a new position than I had before or 2nd, because it has been a little over 2 years since I worked there???

    I am really stressed over this and would really appreciate any advice.

    - - - Updated - - -

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: FMLA and Rehire

    I can reply only as to Federal FMLA since you ignored the request for your state. However, in your situation Federal should be enough, although state law *may* provide additional protections.

    The 12 months employment do not have to be consecutive. I believe that recently the law was amended to put a limit on that - the employer need not include time more than x years ago. I can't recall offhand what x was but it is definitely more than two - it's either five or seven, if I recall correctly. But for purposes of the 12 month requirement, you should be fine.

    However, you also need to meet the 1,250 hours requirement, and for that requirement ONLY time in the twelve months - in your case, nine months - immediately preceding your leave will be included. If you are working full time that should be enough, because 1,250 hours is only a very little more than half time. But if you are working part time, you'll want to keep an eye on your hours because it's not 12 months OR 1,250 hours - it's 12 months AND 1,250 hours.

    This is where state law could come in handy. But since you did not include your state as requested - can't help you there.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: FMLA and Rehire

    Here's the federal regulation:
    Quote Quoting 29 C.F.R. § 825.110(b).
    (b) The 12 months an employee must have been employed by the employer need not be consecutive months, provided

    (1) Subject to the exceptions provided in paragraph (b)(2) of this section, employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months.

    (2) Employment periods preceding a break in service of more than seven years must be counted in determining whether the employee has been employed by the employer for at least 12 months where:

    (i) The employee’s break in service is occasioned by the fulfillment of his or her Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered service obligation. The period of absence from work due to or necessitated by USERRA-covered service must be also counted in determining whether the employee has been employed for at least 12 months by the employer. However, this section does not provide any greater entitlement to the employee than would be available under the USERRA; or

    (ii) A written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service ( e.g., for purposes of the employee furthering his or her education or for childrearing purposes).

    (3) If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer ( e.g., workers’ compensation, group health plan benefits, etc. ), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as at least 12 months, 52 weeks is deemed to be equal to 12 months.

    (4) Nothing in this section prevents employers from considering employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month employment requirement. However, if an employer chooses to recognize such prior employment, the employer must do so uniformly, with respect to all employees with similar breaks in service.

  4. #4
    Join Date
    Mar 2015
    Posts
    7

    Default Re: FMLA and Rehire

    Quote Quoting cbg
    View Post
    I can reply only as to Federal FMLA since you ignored the request for your state. However, in your situation Federal should be enough, although state law *may* provide additional protections.

    The 12 months employment do not have to be consecutive. I believe that recently the law was amended to put a limit on that - the employer need not include time more than x years ago. I can't recall offhand what x was but it is definitely more than two - it's either five or seven, if I recall correctly. But for purposes of the 12 month requirement, you should be fine.

    However, you also need to meet the 1,250 hours requirement, and for that requirement ONLY time in the twelve months - in your case, nine months - immediately preceding your leave will be included. If you are working full time that should be enough, because 1,250 hours is only a very little more than half time. But if you are working part time, you'll want to keep an eye on your hours because it's not 12 months OR 1,250 hours - it's 12 months AND 1,250 hours.

    This is where state law could come in handy. But since you did not include your state as requested - can't help you there.
    Thank you! This is helpful! I live in Maryland and I will be working full-time.

  5. #5
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: FMLA and Rehire

    Maryland does not have any state laws that would supplement this. But from what you're stating, you should be fine under the Federal law.

  6. #6
    Join Date
    Mar 2015
    Posts
    7

    Default Re: FMLA and Rehire

    Thank you so much cbg! You have been very helpful!

    I'm guessing short-term disability would be an entire separate issue? I guess I will have to wait to see the benefits package on that one. Thank you again for your help!

  7. #7
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: FMLA and Rehire

    Short term disability is indeed a separate issue in 45 states, including Maryland. You'll have to take a look at the STD policy. But if you have any questions, c'mon back.

    You'll be looking for pre-existing condition issues and waiting periods.

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