Can an Employee Take FMLA Leave During a Furlough?

Posted on Jun 13, 2020

During a furlough, an employee remains employed and usually remains eligible for benefits (depending on the terms of the employer’s policies and plan documents). The employee is not expected to work.  A furlough assumes that the employee will be reinstated to work at some point in the future.

Employees are not eligible to take FMLA during a furlough as there is no work schedule from which to take FMLA leave. Because there is no work schedule from which to take leave during a furlough, FMLA leave cannot be exhausted. The DOL has advised that furloughs cut off an employee’s use of paid sick leave and paid FMLA leave under the Families First Coronavirus Response Act (FFCRA). In FAQ #26-28 of the DOL’s guidance to FFCRA leave, the DOL very clearly takes the position that FFCRA leave is not available during periods of furlough or closure of the workplace.  This leads to the conclusion that FMLA should be treated in the same fashion, since FFCRA leave is interpreted through the lens of FMLA.

An employee must have worked 1,250 hours at the time FMLA leave is to begin. When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for FMLA leave, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act. 29 CFR § 825.110(c). When an employee is on furlough, they are not performing work, so keep in mind they are not accruing any hours toward the 1,250.