Ask an HR Pro: What Happens if an Employee is Not Eligible for FMLA?

The Family and Medical Leave Act of 1993 requires private-sector employers with 50 or more employees within a 75-mile radius and all public agencies to provide job-protected, unpaid leave for qualifying medical and family reasons. However, only employees who meet certain FMLA eligibility requirements are able to take this unpaid leave. So, what conditions make an employee not eligible for an FMLA leave of absence, and what happens next?

In this Ask an HR Pro, we talked with Vickie Krolak, iHire HR Consultant, to determine what happens if an employee is not eligible for FMLA leave.

“If an employee isn’t eligible for FMLA leave, then it’s up to the employer to decide what to do,” Krolak said. “The employee could still ask for a leave of absence, but that would likely be subject to approval by their manager, HR, and/or senior leadership. If an employee takes a leave of absence that is not covered under FMLA, they do take a risk of losing their job. Without job protection under FMLA, there is no guarantee that their position will still be available upon their return.”

Krolak went on to explain that there are other alternatives, but first, we should break down what constitutes FMLA eligibility. The following FMLA eligibility checklist Krolak provided will help you understand who is and isn’t covered.


FMLA Document


FMLA Eligibility Checklist

Employees are covered by FMLA if they meet all these requirements:

  • Have worked at least 12 months for the employer.
  • Have worked at least 1,250 hours for the employer over the 12 months preceding the date the leave would commence.
  • Currently work at a location where there are at least 50 employees within 75 miles. (For the purposes of FMLA, the location of a distributed employee is the corporate office location to which the employee reports.)

Note: The 12 months of employment do not have to be consecutive. All periods of absence from work due to or necessitated by service in the uniformed services are counted as hours worked in determining eligibility.

Krolak clarified that there are actions an employer needs to take after an employee requests FMLA leave, no matter what the eligibility is.

“Employers must provide FMLA eligibility approval or denial within five days after the employee’s required paperwork is submitted,” she said. “If the employee is not eligible, you must provide at least one reason why." 

There are two forms employers need to provide the employee after a leave request, regardless of their eligibility. You can find them on the Department of Labor’s website. The necessary forms are the Eligibility Notice, form WH-381, and the Rights and Responsibilities Notice, form WH-381.


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Alternative Options to FMLA Leave

If your employee is not eligible for FMLA leave of absence, there are other options. As Krolak mentioned, the employee can still take a leave of absence if it’s approved by HR or whoever decides that at the company.

“That’s really up to the employer, though,” explained Krolak. “They don’t have to grant the leave of absence if the employee doesn’t meet the FMLA requirements.”

But unpaid leave isn’t the only possibility. If an employee has accrued paid time off or sick time, they are obviously entitled to use that leave first. Some states even have their own laws that supplement the federal FMLA law, providing extra eligibility requirements or even paid leave in certain circumstances. You can check your state’s laws here.

For employees with serious health conditions, the Americans with Disabilities Act (ADA) offers protection if their condition qualifies as a disability. Those protections can include providing leave when needed for a disability, even if the employer does not offer leave to other employees.

There’s another option for employees who need time off to give birth and tend to their newborns. Those employees have rights under the Pregnancy Discrimination Act (PDA). The law says that when an employee goes on leave due to pregnancy, childbirth, or a related medical condition, the company must keep that job open for the same period of time that it keeps jobs open for employees who go on disability or sick leave.


Ultimately, if the employee isn’t covered by FMLA, a state leave, the ADA, or the PDA, an employer has no legal obligation to grant them leave. It is up to your company to implement its own policies if needed. For more answers to your HR questions, head to our Employer Resource Center.

By iHire | March 24, 2022