You may have found yourself wondering how to manage an employee’s Family and Medical Leave Act (FMLA) eligibility when he or she has previously worked outside of the United States. Do the hours the employee worked internationally count toward eligibility? The simple answer is ‘no.’
Back to the basics. An employee is eligible under the FMLA if he or she works for a covered employer, has been employed for at least 12 months, is employed at a worksite in the US where 50 or more employees are employed within 75 miles, and has worked at least 1,250 hours during the 12-month period immediately preceding the leave (29 C.F.R. § 825.110). When determining whether an employee has worked the requisite 1,250 hours, the employer must apply the standards established under the Fair Labor Standards Act (FLSA). The FLSA does not apply to an employee working in a foreign country, even though the employee may be a US citizen working for a US company (DOL Field Operations Handbook, Chapter 10, FLSA Coverage).
Per the FLSA guidance, an employee working outside of the US for a US based employer would not be considered a covered employee under the FLSA. Additionally, the hours worked outside of the US would not count toward the ‘hours worked’ requirement if that same employee were to return to the US and request FMLA leave while working in the US. The FMLA regulations 29 C.F.R. § 825.105(b) and the preamble to the 1995 regulations provide further guidance: “FMLA’s coverage extends to any State of the United States, the District of Columbia, and to any territory or possession of the United States (§ 101 of FMLA defines the term ‘‘State’’ to have the same meaning as defined in § 3[c] of the Fair Labor Standards Act). Employees of U.S. firms stationed at worksites outside the United States, its territories, or possessions are not protected by FMLA, nor are such employees counted for purposes of determining employer coverage or employee ‘eligibility’ with respect to worksites inside the United States.”
Accordingly, when an employee has worked outside of the US for a covered employer, returns to the US to continue working for the same covered employer and then requests FMLA leave, the hours worked for the covered employer outside of the US do not count toward the 1,250 hours worked eligibility requirement.
Although it is quite clear that an employee working outside of the US is not covered under the FLSA and hours worked do not count toward FMLA eligibility, there remains an exception if the employee works a partial week in the US and a partial week outside the US. The FLSA is applicable on a week by week basis, and for this scenario the FLSA clarifies that, “When part of the work performed by an employee for an employer in any workweek is covered work performed in any State, it makes no difference where the remainder of such work is performed; the employee is entitled to the benefits of the Act for the entire workweek unless he comes within some specific exemption.” (29 C.F.R. § 776.7, see footnote 20.) This direction requires employers to count the entirety of the hours worked for that split week toward ‘hours worked’ for FMLA eligibility purposes.
Eligibility, hours worked, FMLA, and FLSA have you confused? ReedGroup offers products and services to assist you with managing FMLA and other leaves of absence. For more information, check out our absence management solutions or give us a call at 800-347-7443.