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Compliance Assistance Resources

elaws - employment laws assistance for workers and small businesses

- Family and Medical Leave Act Advisor

Employee Eligibility

Employees are eligible for FMLA protections only if they work for a covered employer, have worked for their employer for at least 12 months, meet the hours of service requirement during the 12 months preceding the start of leave, and work at a site where the employer employs at least 50 employees at the site or within 75 miles of the site.

Details for each eligibility criterion follow.


  • The determination of whether an employee has been employed for 12 months or more must be made as of the date the FMLA leave is to start.
  • The 12 months do not have to be consecutive. With certain exceptions, periods of employment prior to a break in service of seven years or more are not required to be counted toward FMLA eligibility.
  • If an employee is maintained on the payroll for any part of a week, the week counts as a week of employment. This includes any periods of paid or unpaid leave (e.g., sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.)
  • 52 weeks is deemed to be equal to 12 months for purposes of determining whether intermittent/occasional/casual employment qualifies as "at least 12 months."

Hours of Service Requirement*

  • An employee must have been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.
  • The hours of service are counted for the 12-month period immediately preceding the leave and generally must be actual hours worked by the employee. Hours the employee is on leave (paid or unpaid) do not count toward hours of service.
  • Special rules may apply to employees returning from USERRA-covered service.
  • If an employer does not maintain an accurate record of hours worked, the employer has the burden of showing that the employee has not worked the requisite hours.
  • Eligibility is determined the first time FMLA leave is taken for the same qualifying reason in the applicable 12-month leave year.

* Airline flight crew employees are subject to an alternate method of meeting the hours of service requirement. See Special Rules for Airline Flight Crew Employees.

50 Employees within 75 miles of Employee's Worksite

  • A worksite can refer to either a single location or a group of contiguous locations.
  • For employees with no fixed worksite, the worksite is the site to which employees are assigned as their home base, from which their work is assigned, or to which they report.
  • The determination of the number of employees is based on the number of employees maintained on the payroll.
  • The determination of whether 50 employees are employed is made at the time the employee gives notice of the need for FMLA leave.

Uniformed Service Employment and Reemployment Rights Act (USERRA)

  • Pursuant to the provisions of the USERRA, USERRA-covered service counts toward the employee's eligibility under the FMLA. For additional information, see Related Laws.