FMLA eligibility turns on three separate tests. An employee must satisfy all three, and each is measured in a specific way that is easy to apply loosely. Getting eligibility wrong in either direction creates exposure — denying leave to an eligible employee is interference, and granting FMLA-designated leave to an ineligible one can create entitlements the employer did not intend.
The employee must have been employed by the employer for at least 12 months.
Three points matter. The 12 months need not be consecutive. Employment before a break generally counts, subject to a limitation on very long breaks in service. And the 12 months are measured as of the date the leave begins, not the date it is requested — an employee who requests leave at 11 months for a date after their anniversary may well be eligible.
The employee must have worked at least 1,250 hours during the 12 months immediately preceding the start of leave.
This is the test most often miscalculated, for a specific reason: hours worked means hours actually worked. Paid vacation, paid holiday and paid sick time do not count toward the 1,250 unless actually worked. The standard is the FLSA's definition of hours worked, not hours paid.
Two important qualifications. For employees whose hours are not tracked — typically salaried exempt staff — the employer bears the burden of showing the employee did not meet the threshold, and in the absence of records eligibility is generally presumed. And time on USERRA-covered military service counts toward both the 12 months and the 1,250 hours as though the employee had been working.
The employer must employ at least 50 employees within 75 miles of the employee's worksite.
This is where remote work has created genuine complexity. For an employee with no fixed worksite, the worksite is generally the location from which their work is assigned or to which they report — not their home. A remote employee working alone in another state may therefore still be eligible, if the site they report to has the requisite employee count nearby.
Employers who assume a lone remote worker is automatically ineligible are frequently wrong.
The three tests above determine employee eligibility. Separately, the employer must be covered: private employers generally with 50 or more employees for at least 20 workweeks in the current or preceding calendar year, and public agencies and covered schools regardless of size.
An employer can be covered while a particular employee is ineligible — which is exactly the situation the 50/75 test produces.
Eligibility alone is not entitlement. The leave must also be for a qualifying reason: the birth or placement of a child, caring for a spouse, child or parent with a serious health condition, the employee's own serious health condition, or a qualifying exigency arising from a family member's military service. Military caregiver leave carries a longer entitlement.
Record the date eligibility was assessed, the hours calculation and its source data, the worksite used for the 50/75 test and the count supporting it, and the date the eligibility notice was issued. Eligibility disputes are decided on records, and the employer holds them.
Eligibility is not determined once. The 1,250-hour test looks at the twelve months immediately preceding the start of each period of leave, so an employee eligible in March may not be eligible in November if they have taken substantial unpaid time in between.
The reverse also applies: an employee found ineligible earlier may qualify later. Employers who record an eligibility determination and treat it as permanent get both directions wrong.
The eligibility notice is not optional and has a deadline. Where an employee is ineligible, the notice must say so and state at least one reason.
Employers sometimes avoid this conversation, reasoning that an ineligible employee has nothing to be told. The obligation exists regardless, and failing to give notice is itself a basis for a claim even where the underlying eligibility determination was correct.
No, subject to limits on how far back prior service counts.
Yes — hours actually worked, including overtime.
Calculate it properly from records rather than estimating, and document the calculation.
You can offer leave, but be clear it is a company benefit rather than FMLA leave, and apply the policy consistently.
See common pitfalls in FMLA administration and key components of FMLA administration. For structured training, see the FMLA training and certification program.
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