Policy Bulletin No. 1998-02

Appendix I - FMLA - December 11, 1998

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TO: Attendance and Leave Manual Recipients
FROM: Robert W. DuBois
SUBJECT: Eligibility Guidelines for the Family and Medical Leave Act

This bulletin supercedes the eligibility criteria in the following documents:

• Policy Bulletin 94-01 (pp.5, 6, 12, 13)
• Policy Bulletin 95-01 (p.1)
• Advisory Memorandum 95-04 (p. 2)
• General Information Bulletin 95-01 (pp. 3, 4, 6)
• General Information Bulletin 96-02 (no longer in effect)

This policy arises from clarification of the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work.

Agencies should be aware that, unlike leave benefits which are based in rule or negotiated agreement, the Department of Civil Service has no statutory authority for interpretation of the FMLA, a federal law which is administered by the U.S. Department of Labor. The policy set forth in this memorandum represents New York State's interpretation, as an employer, of the rights and obligations under the FMLA and its impact on benefits currently provided by law, rule, regulation and/or negotiated agreement. As issues are clarified by the Wage and Hour Division of the U.S. Department of Labor or by court decision we will provide additional information.

Policy

Effective January 1, 1999, for FMLA leaves commencing on or after the effective date of this policy change, Executive Branch employees will be deemed to have met the minimum service requirements to be eligible for FMLA leave only if:

The employee has been employed for at least 12 cumulative months on the date FMLA leave is to begin. An employee's total State service must be counted when determining if the employee has completed the required 52 cumulative weeks of service, regardless of any breaks in service and regardless of the percentage of time paid during each of the 52 weeks. A week counts toward the 52 weeks if the employee was paid for any portion that workweek. (For this purpose, a workweek is the agency's workweek for payment of salary, which is normally Thursday through Wednesday.)

and

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The employee must have worked a minimum of 1250 hours during the 52 consecutive weeks immediately preceding the date FMLA leave is to begin. When counting the number of hours necessary to meet this 1250-hour threshold, the agency must include all hours the employee actually worked. The law does not include paid leave time such as holidays, vacation, sick leave, sick leave at half-pay, STD, workers' compensation leave, personal leave, military leave, leave for jury duty or witness leave, as time worked toward the 1250-hour minimum. For employees who are ineligible for overtime pay, hours worked for which the employee was not compensated count toward the 1250-hour requirement.

Once it has been determined that an employee has worked the 12 cumulative months, that eligibility criterion has been met for the remainder of the individual's career. However, agencies need to determine if an employee meets the 1250 hours of service requirement each time FMLA leave is designated or requested.

For example, an employee who had met the FMLA eligibility requirement of 1250 hours of service was placed on FMLA leave from June 1 through August 21, 1998, and charged this absence to sick leave and other leave credits. After exhausting his FMLA entitlement the employee continued to be absent on sick leave at half-pay. The employee continued to be absent and disabled as of January 1, 1999, but was not eligible for FMLA leave since he had not met the 1250-hour threshold.

An employee with a 37.5-hour basic workweek will have met the 1250-hour threshold by working 65 percent or more during the 52 weeks preceding the leave. For employees with a 40-hour basic workweek, the minimum is 61 percent.

In determining eligibility, it is important to ascertain whether part-time employees, regardless of their regular employment percentage, have met the 1250-hour threshold FMLA eligibility requirement (for example, by working additional hours beyond their normal work schedule.) For example, an employee with a 40-hour basic workweek, who works half-time and works 266 hours of overtime between July 1 and December 31, 1998, has worked sufficient hours to meet the threshold of 1250 hours of service as of January 1, 1999.

Each time an FMLA request is made, agencies should review whether the employee has met the 1250-hour threshold as of the date the leave is scheduled to begin to determine whether formerly ineligible employees have now met the eligibility criteria or, conversely, to determine if formerly eligible employees have lost eligibility (for example, as the result of extended leave.)

Agencies are encouraged to contact the Employee Relations Unit of this Department at (518)457-2295 with any questions regarding implementation of the FMLA.

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