D. Eligibility

Table of Contents
  1. Any employee who has been employed for at least 12 months and has worked for at least 1,250 hours in the 12-month period immediately preceding the commencement of leave is eligible.
    1. The 12 months that the employee must have been employed need not be consecutive. 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 for at least 12 months, unless the break in service is due to the fulfillment of a Uniformed Services Employment and Reemployment Rights Act (USERRA) covered service obligation, or there is a written agreement concerning the intention to rehire the employee after the break in service. If the employee has been maintained on the payroll for any part of a week, including any periods of paid sick, vacation, or unpaid leave during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health benefits, etc.), the week counts as a week of employment. 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.
    2. Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles of the Fair Labor Standards Act (FLSA) for determining compensable hours. The calculation is based upon hours actually worked, not hours in pay status, except for an employee who has performed USERRA-covered service. An employee returning from, or reemployed after, USERRA-covered service is credited with the hours of work that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service. The 1,250 hours may be worked intermittently, and may involve multiple job classes and multiple branches of state government.
  2. The determination of whether an employee has worked 1,250 hours and has been employed for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
  3. An employee who fraudulently obtains FMLA leave from the employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.