Ask The Lawyer By: Daniel A. Gwinn, Esq. -‘Not eligible’?

HEADLINE: ‘Not eligible’ boss tells part-time worker who wants time off for heart

QUESTION: I’ve been working for the same company for the last four years. I used to
work full-time, but switched to part-time about six months ago so I would have more
time to help with my mom, who is getting frail. I recently learned that I have a heart
condition, and need to have a bypass operation that will keep me off work for six weeks.
When I asked for FMLA time off, my boss said only full-time workers can get leave. He
said he’d try to keep my job open, but couldn’t make any guarantee. I really don’t want
to lose this job.
ANSWER: Your boss is wrong — leave under the Family and Medical Leave Act is not
only available to full-time workers. Under the law, full-time and part-time workers may
be entitled to up to 12 workweeks off — unpaid — for the birth of a child, to take care of
a family member with a serious health condition, or for their own serious health
But the law doesn’t apply to all part-time workers, only those who meet FMLA eligibility
 They have worked for the employer for at least 12 months;
 They have worked at least 1,250 hours in the past 12 months;
 They work for a government employer or for a private company that employs 50
or more workers within 75 miles of the employee’s worksite.
So, even though you are currently working part-time, you may be eligible for FMLA if
you worked a total of at least 1,250 hours (an average of roughly 24 hours per week)
over the past year. But, you must have actually worked all those hours — hours taken
as PTO or holiday do not count towards your hours worked — as a FedEx worker found
out a few years ago when the Sixth Circuit upheld his employer’s denial of his request
for FMLA time off. Although he had been paid for 1,257 hours, he had only worked
1,136 hours when his paid time off was excluded, and he was not entitled to FMLA

Assuming you meet the hours-worked requirement, the time you get off is based on
your workweek. For a full-time employee with a 40-hour week, that translates into 12
weeks off, 40 hours per week, or about 480 hours. If you usually work 25 hours per
week, you would be eligible for the equivalent of 12 workweeks off, or about 300 hours
per year.
If you worked an average of more than 25 hours per week (and are not salaried) you
might be eligible for time off with pay. Michigan’s Paid Medical Leave Act allows eligible
workers to earn 1 hour off with pay for every 35 hours worked, up to 40 hours. If you are
eligible for PMLA, your employer can count your time off with pay towards your 12
weeks of FMLA.
If the amount of paid leave available in the U.S. seems a little stingy — it is, especially
compared to most of the world’s wealthier countries. In Germany, most workers are
eligible for sick pay — called “krankengeld” — for a maximum of 72 weeks. In the
United Kingdom, workers can get “statutory sick pay” of about $130 per week for up to
28 weeks. In fact, the United States in one of only two OECD countries (a group of 37
market-based democracies) that do not guarantee paid leave for personal illness (the
other is South Korea). In most of those countries, the paid time is available for months
— not weeks.
It sounds like your boss has some sympathy for your predicament. Figure out how many
hours you worked during the year and, if you are FMLA eligible, ask again.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to
answer your questions. Give us a call for a free initial telephone consultation about your
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]