Legal Question in Medical Leave in Washington

Re: Denied FMLA even with a doctors excuse

Under federal Family Medical Leave Act (FMLA), an employee must be employed at least one year and work a minimum of 1,250 hours in that year. The hours worked requirement is measured as of the start of the leave period. In other words, if the leave starts on October 31, 2003, to determine eligibility one looks to the 12 months preceding that date (i.e., from October 31, 2003 backwards to November 1, 2002) to determine if sufficient hours were worked. In any case, the employment must equal or exceed 12 months.

In your case, if your hours worked in the 12 months preceding the start of your planned leave are less than 1,250, you are not entitled to FMLA leave. If your hours are short because you took intermittent leave for the same medical condition, on the other hand, you may still qualify.

The regulations governing FMLA explain that a reduced schedule can qualify as such intermttent leave. �If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. For example, if an employee who normally works five days a week takes off one day, the employee would use 1/5 of a week of FMLA leave. Similarly, if a full-time employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use � week of FMLA leave each week.�

The importance of this is that if you were eligible at the time you started in on a reduced schedule (or as of the date you became eligible while on reduced schedule), and your reduced schedule was due to the same condition for which you seek to take leave now (i.e., pregnancy), then your eligibility very well might depend on the number of hours you took before starting the reduced schedule.

Keep in mind that if you establish eligibility by making use of the intermittent leave, you will have to deduct that time from the 12-week eligibility you otherwise would have, though even this depends on how the employer calculates leave eligibility � if no policy is established, then you receive a new 12-week allotment of FMLA leave for each new calendar year.

Your state law also provides for medical leave, and your eligibility under state law may differ from the federal law addressed in this response.

As you can see, this is a complex area of law. You should seek the advice of an attorney. The above does not constitute legal advice and is offered for the purposes of discussion only. The law differs in every jurisdiction, and you should not rely on any opinion except that of an attorney you have retained, who has a professional duty to advise you after being fully informed of all the pertinent facts and who is familiar with the applicable law.