What To Do if an Employee Is Not Eligible for FMLA: Your Ultimate Guide

Imagine this scenario: Jaimie is one of your best, most productive employees. Everyone loves her, and she contributes heavily to the health and profit of the organization. One day, she comes into the office and announces she and her husband are adopting a baby. Of course, everyone is thrilled for her.

But when she pops into the HR office and says she will be taking ten weeks of leave to adjust to her new family situation, things get sticky. Jaimie will only have been working for ten months at the time of her adoption, and that means she will not be eligible for FMLA.

If you’re an HR professional in charge of approving and managing leave, how would you handle this situation? If you aren’t totally sure, you’re not alone.

FMLA is a federal law that allows eligible employees to take up to 12 weeks of unpaid leave for certain family and medical reasons. Not all employees are eligible for FMLA, and often newer employees like Jaimie are left high and dry. In order to be eligible, an employee must have worked for their employer for at least 12 months and have worked at least 1,250 hours during that time.

Employees who are not eligible for FMLA are often unsure of their rights and options, and may be confused regarding what kinds of leave they can take. There are other laws which may provide them some rights and job protection, but the rules and regulations can be difficult to navigate. While no FMLA may mean fewer obligations on the company’s side, it’s up to the HR department to work with these non-eligible employees and help them come up with a plan that works for both them and the company.

Here’s your complete guide for handling employees who aren’t eligible for FMLA.

Understanding Employee Eligibility for FMLA

Before we look at what to do when an employee is not eligible for FMLA, it’s important to get a good grasp on just what FMLA is about. The Family and Medical Leave Act (FMLA) is a crucial piece of legislation that provides job protection and unpaid leave to eligible employees who need time off for specific family or medical reasons. But it’s not for everyone. Some qualifying events include:

• The birth of a child, postnatal and prenatal care, or the care of a child that is less than a year old
• The care of a child newly added to a family through adoption or foster care, within a year of placement
• Caring for a seriously ill family member (a spouse, child, or parent)
• Addressing your own serious medical condition (one that makes it impossible to do essential functions at work)

There’s also a provision for those facing a qualifying exigency who have a spouse, son, daughter, or parent who is on covered active duty or a covered military member.

But that’s not all. To invoke FMLA, employees must work for a covered employer; a private-sector employer that has at least fifty employees within a 75-mile radius. They must also have worked for the employer at least 12 months (not necessarily consecutive) and logged at least 1,250 hours over the 12-months previous.

If an employee does not meet these eligibility requirements, they won’t be able to take FMLA leave. The instance with Jaimie is a good example, since she was adopting a child (a valid reason). Let’s also assume she worked for a covered employer, and had accumulated more than 1,250 hours of service. However, she hadn’t worked for 12 months, so FMLA did not guarantee her any job-protected leave. While this doesn't mean the employer is prohibited from allowing that leave, there is no legal mandate for it.

Consequences for Employees Not Eligible for FMLA

The FMLA has provided peace of mind, crucial job protection, and insurance coverage for millions of Americans. But for those ineligible, the legislation underscores a unique vulnerability right when they most need support. They may find themselves in a different situation entirely as they navigate their health challenges and family responsibilities.

Jaimie has options in this case, but unless her company’s HR team steps up to the challenge, none of them look good.

Option 1: Keep Coming to Work

In this case, Jaimie could stay the course at work, showing up each day so she doesn’t lose her job and her family’s financial stability. However, that would mean:

• No early bonding time with her newly adopted child at home, creating a poor adjustment period
• No daytime naps to catch up from the long nights of no sleep
• The above factors would cause her to be stressed, depressed, and exhausted at work and beyond
• Both her family life and job performance would suffer, and the consequences might be long-lasting

Option 2: Take the Leave Anyway

Her other alternative might be to simply take the leave anyway, with or without permission. For instance, she might use vacation days (if she has a lot of them) or simply demand unpaid leave.

This would probably mean:

• She could lose her job (and her insurance coverage)
• She would have to dig deep into any savings should health emergencies pop up (and hope that covers it)
• She would be out of a job again until she could find a babysitter or put the child in daycare

That said, a new child isn’t the only reason people seek FMLA. Let’s consider a construction worker named Mike, who suddenly discovered he had Lyme disease. Because of his overwhelming symptoms, Mike couldn’t perform any of his job functions. However, he had only been working at the company for 11 months, and wasn’t eligible for FMLA. He also had no sick days left. Because his employer had no policy for this kind of leave, he ended up staying six weeks in the hospital and spent his recovery time sending out job applications.

For these reasons it’s important for HR departments and company leaders to handle FMLA requests with compassion and understanding, especially when they are rejected.

How to Support Non-Eligible Employees

Keeping track of all the legislation surrounding leave (and who is eligible for which type) is primarily the responsibility of the HR department. It’s also HR’s job to implement policies that benefit both the employer and employee. That means paying close attention to company goals like:

• Employee retention
• Engagement
• Competitive wages and compensation
• Company culture

Keep in mind that actively helping people who aren’t eligible for FMLA isn’t just a humanitarian task. It’s about maintaining a positive work environment and retaining valuable talent — two of the chief goals of the HR department. Sometimes that means being extra flexible and understanding with those who are facing challenging home situations. Here are a few ways HR teams can handle FMLA and those who aren’t eligible:

Educate Your Team

You’ll want to keep all employees up to date with whether they are eligible for FMLA or any other state or local leave laws. This enables them to make educated, thoughtful decisions about how to structure their work/life balance and leave requests. When the time comes to request leave, no one wants to be surprised with a rejection.

Educating your team on FMLA and related laws also shows that their employer is looking after the best interest of employees. In the event that an employee is rejected for an unreasonable accommodation or unqualified leave, you have already balanced the disappointment by establishing trust early on.

Offer Your Own Paid Leave

Even if a specific individual is not protected by any state or federal laws, it is still in the company’s interest to treat each of their employees as generously as possible. That’s why many companies provide generous forms of paid parental or sick leave as part of a larger benefit package.

Keep in mind also that FMLA guarantees 12 weeks of unpaid leave. If you want to offer a competitive wage/benefits package, paid parental leave is a great way to do it. Paid parental or sick leave is meant to relieve financial stress during tough moments in an employee’s life. An employee who knows he or she will be supported during these crucial times will most likely become more engaged and committed to the company in the long term.

This is also why companies offer short-term and long-term disability insurance. Companies can provide these as part of a larger benefits package to ensure people are taken care of in the event of an injury. This type of insurance is typically managed through a third-party insurance provider at a discounted rate, and includes paid coverage of non-work related injuries and illness.

While employees who take advantage of in-house plans like these are still entitled to FMLA (if eligible), your paid leave might offer enough support that they don’t need to take additional leave at all.

Meet to Discuss Alternative Options

If an employee submits a request for FMLA and doesn’t qualify (and your company doesn’t offer paid leave for this scenario), you’ll want to meet with them to inform them. You can write them a letter, but a rejection like this is difficult to handle, and you’ll want to demonstrate your compassion in person.

During the meeting, be clear about the requirements for FMLA and why the employee does not meet them. This transparency can go a long way. Then, you can discuss what kind of personalized plan might work for both the employee and the company, offering as many viable options as possible.

If an employee request for accommodation is unreasonable (be careful with the law), share with them why it doesn’t work for your organization or isn’t something you can accommodate. Then, offer possible alternative solutions. Employee needs and company interests are not always opposed, and what’s best for your employee will often benefit the company as a whole.

Beyond FMLA: Other Employer Obligations

Those who work in human resources are very aware that the legal framework governing the employer-employee relationship is intricate, with numerous federal, state, and local laws to navigate. FMLA isn’t the only law relevant to leave-taking during pregnancy or when faced with a disability. Others include:

• The Pregnancy Discrimination Act (PDA) - Established in 1978, this act prevents employers with at least 15 employees from discriminating against pregnant employees. It requires them to provide the same health benefits and accommodations that are provided to other employees with similar limitations or disabilities.
• The Americans with Disabilities Act (ADA) - This law provides for reasonable accommodation of employees with qualifying disabilities, any that ‘substantially limits one or more major life activities’. Reasonable accommodation here means it must not create undue hardship for the employer, so there is some room for negotiation and give and take. In some circumstances, intermittent leave may be an option, where the employee takes multiple (shorter) periods of time off, rather than an extended time away.
• The Pregnant Workers Fairness Act (PWFA) - This brand-new legislation went into effect on June 27, 2023. This act requires employers to provide reasonable accommodation to pregnant workers throughout pregnancy and the postpartum period. Like the Pregnancy Discrimination Act, this also applies to all private and public sector employers with at least 15 employees.

However, the PDA, ADA, and PWFA do not cover every possible scenario. There are over 130 state leave laws across America, and it’s your responsibility to stay up to date with any that might be in effect for your locations. These include pregnancy-related leave laws, legislation on parental-related leave or family medical leave, crime victim leave, and military family leave.

For instance, workers in Connecticut are protected by the Connecticut and Family Medical Leave Act. The CTFMLA provides protected 12-weeks leave for those working in smaller businesses with one or more employees. Across the border in New Jersey there’s another leave law, but this one only covers those working in businesses with 30 or more employees.

What’s more, some states have mandatory Paid Family Medical Leave (PFML) laws, including California, Connecticut, Massachusetts, New York, New Jersey, Rhode Island, Washington, Colorado, Delaware, Maine, Maryland, Minnesota, and Oregon. D.C. also has PFML laws. However, the specific requirements for eligibility and how much an employee is entitled to may vary by location.

Final Thoughts

Employees like Jaimie are some of a company’s most valuable assets, and standing by an employee during crunch time will always yield high dividends. If Jaimie’s HR office is able to come up with a situation-appropriate protected leave that still keeps the office humming, the organization will be better off.

Companies that don’t provide their workers with job security are quickly losing relevance in today’s world, and those who want to compete for top talent will have plans and policies that put their workers first. If an employee is not eligible for FMLA, it’s up to HR to come up with a compassionate plan that takes into account the needs of all parties.

As an HR professional, you need to know who is (and who is not) eligible for FMLA, and which leave laws apply to certain employees. You need to keep employees updated on their eligibility as well. Doing this at scale without software built for that purpose can be a nightmare. With Criterion HCM, you can:

• Handle all employee data in one place
• Create and manage new benefits packages
• Send messages to specific groups of people
• Control access to key company-wide and employee-specific documents
• Integrate with any third-party software to create your ideal tech stack
• Configure the platform to meet your unique needs and workflows

At Criterion, our team is committed to helping HR professionals do their jobs more effectively. That’s why we’re constantly updating our software to help you remain in full compliance with the law.

Learn how Criterion HCM can help you create a more streamlined, compliant HR department and a more engaged team. Book a demo today.

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