Q: An employee requested and was approved for FMLA qualifying leave. But after he was out for six weeks, we closed a facility, with the result that he no longer works at a site with 50 or more employees within 75 miles. Does that mean his leave is no longer FMLA qualifying and his job is no longer guaranteed?

Call Mark Soycher at the HR Hotline: 860.244.1900.
Call Mark Soycher at the HR Hotline: 860.244.1900.

A: No. Employee eligibility for FMLA job protections is determined at the time FMLA leave is requested.

A subsequent change in a company's situation: such as a reduction in the number of employees or a change in the geographic distribution of the workforce: would not interrupt or curtail the FMLA leave rights of an eligible employee for the particular leave circumstance previously requested.

If an FMLA leave period is less than 12 weeks, however, leave requested for a new reason at some future date when the employer is no longer covered: for example, because of an insufficient number of employees: could be denied.

The Code of Federal Regulations' FMLA provisions contain a reference that appears to directly address this issue. Section 29 CFR Sec. 25.110(e) defines an "eligible employee" this way:

"Whether 50 employees are employed within 75 miles to ascertain an employee's eligibility for FMLA benefits is determined when the employee gives notice of the need for leave.

"Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee's eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee's worksite, for that specific notice of the need for leave.

"Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December."