FMLA Leave Eligibility


Q:  I know that I must work 12 months before I am eligible to take leave under the Family Medical Leave Act.  I worked for the federal government for two years, followed by a four year break in service when I worked in the private sector. After spending four years in the private sector, I returned to federal employment and have been federally employed for the last eight months. I currently work for the VA, yet my prior service was with another agency. Am I eligible to take leave under the Family Medical Leave Act?

A:  Unfortunately, use of leave under FMLA can be complicated, and I do not believe I have sufficient information to answer your question. The rules are not uniform throughout the government, and in your case, they are not even uniform within your agency–different rules apply to employees of the Veterans Health Administration (“VHA”) who have been appointed to their position under Title 38. Although you have told me that you work for the VA, it is not clear to me whether you are a Title 38 VHA employee or not.

Most government employees, and many VA employees, are eligible to take FMLA leave if they have twelve months of prior service. These 12 months of prior service need not be recent or consecutive service. See 5 C.F.R. §630.1201(b)(ii). However, that rule only applies to employees listed at 5 U.S.C. §6301(2), which explicitly excludes many Title 38 VA employees.

The VA does have internal policies explaining when Title 38 VHA employees are eligible to take leave to tend to familial or medical matters. If you are a Title 38 VHA employee, I suggest that you review the internal policies on leave. The internal policy may require that you have worked a certain number of hours within the last 12 months in order to become eligible for leave.

This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases


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