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What Happens If an Employee Is Not Eligible for FMLA?

Your employee has an unexpected emergency, or is planning to start a family and wants to take parental leave. They fill out all the forms and submit a request under the Family and Medical Leave Act (FMLA). There’s just one problem: They aren’t eligible for it.

Because the eligibility requirements for FMLA are so specific, every request has to be assessed on a case-by-case basis. So what happens if an employee is not eligible for FMLA leave? Can they take time off anyway — and do you have to grant it?

Let’s take a look at some reasons why an employee may be ineligible for FMLA, and how you can work together to achieve a satisfactory outcome.

What Is FMLA?

According to the U.S. Department of Labor, FMLA guarantees eligible employees up to 12 weeks of unpaid leave in any 12-month period for certain qualifying conditions. This can include the adoption or birth of a child, the placement of a child through foster care, or a serious medical condition. FMLA leave is separate from vacation days or sick time.

Since FMLA only mandates unpaid leave, the primary benefit is job protection: At the end of the leave period, the employee is entitled to have their job back. Typically, this means reinstatement at the same office or worksite. Employees are also entitled to maintain their health insurance for the full 12 weeks of FMLA leave.

Types of FMLA Leave

There are several types of leave an employee could qualify for under FMLA leave law.

Parental Leave

The Family and Medical Leave Act entitles new parents to up to 12 weeks of leave after the birth of a child, an adoption, or a placement of child into foster care in their home. Although such leave must be completed within a year, it could begin before the birth of a child (in the case of prenatal care) or take the form of intermittent leave (with HR approval).

Medical Leave

Medical leave is for serious medical conditions that aren’t covered under a company’s non-FMLA sick leave policy. Employees can request such leave for their own serious health condition, or to care for a sick family member for a longer period of time.

Military Family Leave

FMLA provides a longer leave entitlement — up to 26 workweeks — for employees who need to take care of an active duty service member in their family. They may also be eligible for a qualifying exigency in the case of some military deployments.

Reasons Why an Employee May Not Be Eligible for FMLA

Woman in deep thought, with her hands interlaced over her mouth

Federal law is very specific about which employees are eligible for FMLA. Although both part-time and full-time employees are eligible for leave time, they have to have worked for the same employer for a certain amount of time, and they have to be working for a “covered employer,” either in a public agency or in the private sector.

Here are three situations in which an employee might not be eligible.

1. The employee hasn't worked at the company for long enough.

An employee has to have worked for the same employer for at least 12 months in order to qualify for FMLA. These months don’t have to be consecutive, so a seasonal worker would still be eligible after putting in enough time over several years of employment.

However, they also have to work 1,250 hours within the past 12 months, which means some part-time or seasonal workers may not qualify.

2. The employer has fewer than 50 employees at a given location.

Federal employees are nearly always eligible for FMLA, regardless of the size of their agency. However, small businesses with fewer than 50 employees aren’t required to provide FMLA leave, regardless of the qualifying reason.

Even in a large company, locations with fewer than 50 employees in a 75-mile radius are exempt from FMLA — so employees who are working from home or at a remote branch may be surprised to find out that they’re ineligible.

3. The employee doesn’t have a qualifying health condition.

Not all health conditions meet the requirements for FMLA leave, and employees may need to provide a medical certification in order to qualify. According to, the following situations are most likely to be approved:

  • Conditions that require frequent visits to a health care provider
  • Conditions that require an inpatient stay
  • Chronic conditions or incapacitation

Employees with health conditions that don’t meet these guidelines may need to take short-term sick leave instead.

What Happens If an Employee Is Not Eligible for FMLA?

So what happens if an employee is not eligible for FMLA leave? Technically, they could be fired for missing too much work, and their employer isn’t required to give them their job back or continue to provide them with health benefits.

But just because that’s legal under federal law doesn’t mean that’s the best outcome. In some cases, state laws may provide similar leave entitlements, and in other cases, the employer may simply want to do their best to honor employee requests for leave.

If an employee isn’t eligible for FMLA, see if they qualify for paid or unpaid leave under one of these laws instead.

Americans with Disabilities Act (ADA)

A chronic health condition that doesn’t qualify for FMLA could meet the definition of a disability under the Americans with Disabilities Act. An employer could be required to provide leave or accommodation under this regulation instead of FMLA.

Pregancy Discrimination Act (PDA)

Small companies with less than 50 employees aren’t required to offer parental leave. However, the Pregnancy Discrimination Act prevents employers from withholding a promotion or terminating a job because of childbirth or pregnancy.

State and Local Laws

Some states have laws that are more comprehensive than FMLA. For example, in California, companies with 20 to 49 employees are required to offer parental leave under the New Parent Leave Act.

Parents may also be eligible for six weeks of paid leave under the California Paid Family Leave program.

Work Together to Find a Solution

If an employee isn’t eligible for FMLA leave, it’s good practice to work with them to try and find a solution. Maybe they have enough vacation days or sick time saved up that they can use instead. Or, maybe you’re willing to hold their job open for them if they agree to take a shorter leave than they initially requested.

Without FMLA eligibility, there’s a risk that the job won’t be there for them when they return to work, but by communicating with them in advance, you may be able to work out a solution that meets your company’s needs and ensures their job security.

Digitize the LOA Process With Pulpstream

What happens if an employee is not eligible for FMLA: entrepreneur happily working at her office

Going through the FMLA eligibility checklist for every leave request can put a strain on your human resources department — especially for leave requests that aren’t clear cut. By digitizing the leave of absence process, you can save time and reduce the risk of manual error, resulting in faster resolution times and more successful outcomes.

If you’re struggling to navigate the LOA process, simply set up an automated workflow with Pulpstream. Pulpstream makes it easy to determine eligibility with a no-code rule engine, and a self-service tool to streamline your return to work program.

Request a demo today to find out how Pulpstream can help!