The Essential Guide to Family & Medical Leave

44 | the essential guide to family and medical leave
Lessons from the
Real World
An employee who didn’t actually work 1,250 hours
in the preceding year is not entitled to FMLA leave,
even if the employer granted it by mistake.
In May 1995, Jayson Sepe, a builder for McDonnell Douglas Corp., requested
and was granted a 12-week leave in connection with the birth of his
daughter. Because of medical leave Sepe had already taken in the last year, he
had worked only 822 hours in the 12 months preceding his daughter’s birth.
While on the May 1995 leave, Sepe worked for an excavating company
he and his wife had started a few years earlier, in violation of McDonnell
Douglas’s policy prohibiting employees from working while on leave.
McDonnell Douglas fired Sepe for violating the policy.
Sepe sued the company for, among other things, violating the FMLA.
Sepe argued that McDonnell Douglas could not challenge his eligibility
after (mistakenly) granting his request for FMLA leave. The court disagreed.
Because Sepe had not worked the required 1,250 hours in the 12 months
prior to requesting leave, he was not qualified for FMLA protection from
termination.
Sepe v. McDonnell Douglas Corp. (8th Cir. 1999) 176 F.3d 1113.
If Intermittent FMLA Leave Reduces an Employee’s Hours
Sometimes, an employee seeking FMLA leave needs occasional days or hours
(rather than whole weeks) off or reduced work hours (for example, from full
time to part time). The employee may be entitled to intermittent or reducedschedule
leave under the FMLA. Chapter 6 covers reduced schedule and
intermittent leave in detail.
An unintended consequence of taking leave this way can be that the
employee’s hours fall below the 1,250-hour minimum. But you can’t deny
FMLA leave as a result: As long as the employee still needs the reduced
schedule for the same condition that necessitated FMLA leave in the first
place, the employee remains eligible.