It may depend upon whether the employee is ineligible when the leave began because of the length of service requirement (total of 12 months) or hours worked requirement (1,250). Section 825.110(b)(3) provides, If an employee is maintained on the payroll for any part of the week including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits, etc.) the week counts as a week of employment. Section 825.110(d) of the regulations provides, “An employee may be on ‘non-FMLA leave’ at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA qualifying reason after the employee meets the eligibility requirement would be ‘FMLA leave.’
