FMLA eligibility: the tests you must pass before leave starts

Four questions, asked in this order

Human resources departments tend to run the checks the same way. First, is the employer covered at all? A private company enters the law once it has 50 or more people on the payroll for each working day in 20 or more calendar weeks, in the current or the previous calendar year. Public employers and elementary and secondary schools are covered whatever their size. Second, has the employee been with this employer for 12 months? Third, did the employee put in 1,250 hours over the past year? Fourth, does the worksite have 50 employees within 75 miles? A no at any step ends the inquiry under federal law, although a state statute may still apply. The regulation that sets the three personal tests is 29 CFR 825.110, and the eligibility notice your employer must give you is described in section 825.300.

Timing matters. Eligibility is judged as of the date the FMLA leave is to start, not the date you ask. Someone who reaches 12 months during a stretch of non-FMLA leave becomes eligible on that date, and the remainder of the absence can then count as FMLA leave if the reason qualifies.

How the 1,250 hours are counted

The hours test uses the Fair Labor Standards Act idea of hours worked. Paid vacation, holidays, sick days and other paid time off do not count, because you were not working. Overtime hours do count. So does time that should have been paid but was not, such as unrecorded work before a shift: the regulation says the result is not limited by payroll records that understate real hours. If the employer keeps no accurate record of your time, which is common for salaried exempt staff, the employer carries the burden of showing you fell short. For full-time teachers who grade papers at home, the rule says this plainly.

Spread over 52 weeks, 1,250 hours is about 24.0 hours a week. That makes the part-time edge very thin. A worker on exactly 24 hours a week every week of the year reaches 1,248 hours, 2 short of the line, and one unpaid week off pushes the total further away. The table shows common schedules for a full year and for a year with four weeks of unpaid time away.

Returning service members get special treatment: under the Uniformed Services Employment and Reemployment Rights Act, the hours you would have worked during military service are added to the hours you actually worked. Airline flight crews have their own hours rule in a separate section of the regulations.

The 12-month rule and breaks in service

The months need not be in a row. Seasonal staff who return every summer, or someone rehired after a few years elsewhere, can add earlier periods with the same employer. Any week in which you were on the payroll, even for one day or while on paid leave, counts as a week of employment, and for irregular or casual work 52 weeks are treated as 12 months. The limit is the break in service. Employment before a gap of 7 years or more is normally ignored, with two exceptions written into the rule: the gap was caused by military service covered by USERRA, or a written agreement, such as a union contract, showed the employer intended to rehire you. An employer may choose to count older service anyway, but then it has to do so for everyone in the same situation.

The worksite count that trips up branch employees

The 50-employee test looks at the place you report to and every site of the same employer within 75 miles, measured in surface miles along public roads by the shortest route. A retail chain with thousands of workers can still leave a clerk at an isolated store outside the FMLA if fewer than 50 colleagues work within that radius. Employees with no fixed site, such as drivers, construction crews and traveling salespeople, belong to the home base they report to or receive assignments from. The count is taken when you give notice of the need for leave, and once you are found eligible for that notice, a later drop in headcount does not take the leave away. The regulation gives the example of a company with 60 employees in August that expects to fall to 40 by December: an employee who gives notice in August for leave in December keeps the protection.

If you fall short, look at state law next

Failing the federal test does not always leave you without protection. Several states have family leave statutes that reach smaller employers or require less service, and state paid leave insurance programs set their own, usually lighter, conditions based on wages earned rather than hours worked for one employer. Of the 51 jurisdictions covered on this site, 16 have enacted a paid family leave program and 14 pay benefits on this site's check date: California, Colorado, Connecticut, Delaware, District of Columbia, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Rhode Island and Washington. The state-by-state comparison shows the weeks and weekly maximums. Accrued paid sick leave can cover shorter absences in states with a sick leave law, and the main FMLA page explains what the leave itself protects once you qualify. When the facts are close, such as disputed hours or a contested worksite count, the Wage and Hour Division decides complaints, and an employment lawyer can look at your records.