FMLA Articles

Does an employee burn FMLA during EFMLA leave even if he’s not yet FMLA-eligible?


Key to remember: Employees are entitled to only one batch of 12 weeks of leave, even if they do not meet the FMLA eligibility criteria until later.

Applies to: All public employers and private employers with 50 or more employees. 

Impact to customers: Employers need not allow for 12 weeks of EFMLA and an additional 12 weeks of FMLA leave. This should make administration easier.

Possible impact to JJK products/services: This will serve best in an article on the Leave Manager.

Back in April, Emma Employee’s son’s school shut down because of the pandemic. Therefore, Emma took leave under the Families First Coronavirus Response Act (FFCRA). She used the 80 hours of emergency paid sick leave, followed by an additional eight weeks of expanded family and medical leave.

Since she began working for the company last October, she met the 30-day eligibility criteria for the additional 10 weeks of EFML (there are no eligibility criteria for the EPSL). Now, however, she needs more EFML as her son’s school has chosen to stay closed. Therefore, she will use the last two weeks of her 10 weeks of EFML in September.

Emma has also indicated that she will need more time off to care for her husband, Spencer, who has a medical procedure scheduled for November.

Lori, the company leave administrator, wondered if, when Emma meets the 12-month eligibility criterion for FMLA leave in October, she would be entitled to another 12 weeks of leave. Since she was not eligible for FMLA leave when she took the FFCRA leave, Lori thought it might be possible.

According to the U.S. Department of Labor, an eligible employee is entitled to up to 12 workweeks of EFML during the period between April 1, and December 31, 2020. Since Emma will have taken all 12 weeks of EFML, she would not have any more FMLA leave available during the company’s 12-month leave year period. This is true even if Emma would not meet the eligibility criteria for FMLA until October. While she will be finally eligible for FMLA leave in October, she will not have any FMLA leave available, because she used it all when she took the EFML leave under the FFCRA.

Emma would not have any more FMLA leave available until a new 12-month leave year began. If, for example, the company used the calendar year method to calculate the 12-month leave year period, Emma would not have any more FMLA leave available until January 1, 2021.

Despite being around for over four months, the FFCRA still poses some challenges for leave administrators. As with many employment laws, the devil is in the details.

With many schools reopening while others do not, employers need to stay vigilant in their understanding of the FFCRA and other related laws.Does an employee burn FMLA during EFMLA leave even if he’s not yet FMLA-eligible?

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.