770-410-1219
Every FMLA question starts with the same two: is this employee eligible, and is the reason one the law covers? If you get the first wrong in one direction, you deny protected leave. If you get it wrong in the other, you may promise job protection the law did not require and then have trouble taking it back.
FMLA eligibility is three tests, each with its own counting rules and its own measuring date. This article works through them in the order you should run them, covers the special rules for remote employees, airline flight crews, and returning servicemembers, and then sets out the qualifying reasons. It is part of our FMLA Guide; for the full sequence of employer duties, see FMLA requirements for employers.
First, Is the Employer Covered?
Employer coverage is a separate question from employee eligibility. The FMLA covers:
- Private employers with 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year. The weeks need not be consecutive.
- All public agencies, regardless of the number of employees.
- Public and private elementary and secondary schools, regardless of the number of employees.
Anyone on the payroll counts for the week, including part-time employees and employees on leave. Employees who work outside the United States and its territories are not counted. Jointly employed workers, such as agency temps, are counted by both employers.
A covered employer can have employees who are not eligible. That is the usual result at a small public agency or rural school: the employer is covered, but no one meets the 50-employee worksite test.
The Three FMLA Eligibility Requirements
| Test | Threshold | Measured as of | Most common error |
|---|---|---|---|
| Length of service | 12 months with the employer | The date leave is to start | Requiring consecutive months, or using only the latest hire date |
| Hours of service | 1,250 hours in the 12 months immediately before leave | The date leave is to start | Counting paid time off as hours worked |
| Worksite size | 50 or more employees within 75 miles of the worksite | The date the employee gives notice of the need for leave | Treating a remote employee’s home as the worksite |
Test 1: 12 Months of Employment
The 12 months need not be consecutive. Key rules:
- Any week on the payroll counts, including weeks of paid or unpaid leave during which the employer provides other benefits or compensation. For intermittent or casual employment, 52 weeks equals 12 months.
- Seven-year look-back. Employment before a break in service of seven years or more need not be counted, with two exceptions: the break was for military service covered by USERRA, or a written agreement, including a collective bargaining agreement, reflects the employer’s intent to rehire. An employer may choose to count older service, but must do so uniformly.
- Measured at the start of leave, not at the request. An employee who asks at month 11 for leave that begins after the anniversary can be eligible. An employee can also become eligible partway through a non-FMLA leave, and the portion taken for a qualifying reason after that date is FMLA leave.
Example (illustrative): An employee worked for you for eight months, left, and was rehired three years later. Five months into the second stint, she has 13 months of service. A system that looks only at the latest hire date will get this wrong.
Test 2: 1,250 Hours of Service
Hours of service are determined under Fair Labor Standards Act principles for compensable hours of work. That means hours actually worked.
- Paid vacation, holidays, sick leave, and other paid time off do not count, and neither does time on FMLA leave.
- Overtime hours do count, as does all other time that is compensable work time under the FLSA.
- The count is not limited by the employer’s recordkeeping method. Any accurate accounting of actual hours may be used.
Full-time employees clear the test easily. Part-time, seasonal, and variable-hour employees are where it decides the outcome.
No records, no defense. If the employer has not kept an accurate record of hours, including for employees exempt from FLSA overtime, the employer has the burden of showing the employee did not work the required hours. Do not deny leave to a salaried exempt employee on an hours theory you cannot document.
Returning servicemembers. An employee returning from service covered by USERRA is credited with the hours he or she would have worked but for the service, and the period of service also counts toward the 12 months. See USERRA leave and reinstatement.
Test 3: 50 Employees Within 75 Miles
The employee must work at a worksite where the employer employs 50 or more employees within 75 miles.
What is the worksite?
Ordinarily it is the site the employee reports to or, if none, the site from which the employee’s work is assigned. A campus or group of nearby buildings can be one worksite. For employees with no fixed worksite, such as construction workers, truck drivers, and salespeople, it is the home base they are assigned to, receive work from, or report to.
How is 75 miles measured?
In surface miles by the shortest route over public streets, roads, highways, and waterways, not in a straight line. Where there is no surface transportation between worksites, the distance is measured by the most frequently used mode of transportation.
Who is counted?
Everyone the employer maintains on the payroll within that area, full-time or part-time, including employees on leave.
When is it measured?
When the employee gives notice of the need for leave. If the headcount later drops below 50, eligibility for that leave is not affected, and leave that has started cannot be ended for that reason.
Remote Employees: Which Worksite Counts?
The regulation at 29 CFR 825.111(a)(2) is direct: an employee’s personal residence is not a worksite for employees who work at home. Their worksite is the office to which they report and from which assignments are made.
The Department of Labor confirmed how this applies to telework in Field Assistance Bulletin 2023-1. In its example, an employee teleworks more than 75 miles from headquarters and receives assignments from a manager there. Headquarters is her worksite, so she meets the test if the employer has 50 or more employees within 75 miles of it. The count includes other teleworkers who report to that office.
In practice, record for every remote employee the office he or she reports to or receives assignments from, count remote employees toward that office’s total, and do not assume a lone remote worker in another state is ineligible. Often the opposite is true.
For the wider set of remote-work leave issues, see leave management for remote and hybrid teams.
Special Eligibility Rules
Airline flight crew employees
Flight crewmembers and flight attendants meet the hours requirement if, in the previous 12 months, they have worked or been paid for at least 60 percent of their applicable monthly guarantee and have worked or been paid for at least 504 hours. The 504 hours do not include personal commute time or time on vacation, medical, or sick leave. The other two tests apply as usual, and airlines have added recordkeeping duties.
School employees
Schools are covered at any size, but the usual employee tests still apply. To treat a full-time teacher as short of 1,250 hours, the employer must be able to show it clearly, because much of a teacher’s work happens outside the classroom.
Qualifying Reasons for FMLA Leave
Eligibility alone is not entitlement. The leave must be for one of these reasons.
| Reason | Entitlement | Points to know |
|---|---|---|
| Birth of a child and care of the newborn | 12 workweeks | Both parents qualify; bonding leave must end within 12 months of the birth |
| Placement of a child for adoption or foster care | 12 workweeks | Must end within 12 months of the placement |
| Care of a spouse, son, daughter, or parent with a serious health condition | 12 workweeks | Parents-in-law are not covered |
| The employee’s own serious health condition | 12 workweeks | The condition must make the employee unable to perform the functions of the job |
| Qualifying exigency from a family member’s covered active duty | 12 workweeks | Family member is a spouse, son, daughter, or parent |
| Care of a covered servicemember with a serious injury or illness | 26 workweeks in a single 12-month period | Open to a spouse, son, daughter, parent, or next of kin |
The 12 workweeks are a combined total for all reasons in the 12-month period the employer has chosen. See four ways to count the 12-month period.
Serious health condition
An illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Continuing treatment includes incapacity of more than three consecutive full calendar days with treatment, pregnancy and prenatal care, chronic conditions, long-term conditions, and conditions requiring multiple treatments. Ordinarily a cold, the flu, or routine dental work does not qualify. Mental illness may qualify when it meets the same tests; see FMLA for mental health conditions.
Family members
- Spouse means a husband or wife in a marriage recognized under the law of the state where the marriage was entered into.
- Parent means a biological, adoptive, step, or foster parent, or someone who stood in loco parentis to the employee as a child. It does not include parents-in-law.
- Son or daughter means a biological, adopted, or foster child, stepchild, legal ward, or child of a person standing in loco parentis, who is under 18, or 18 or older and incapable of self-care because of a mental or physical disability when leave begins.
Additional rules
- Spouses with the same employer. They may be limited to a combined 12 workweeks for birth, placement, and care of a parent, and a combined 26 workweeks in the single 12-month period that includes military caregiver leave.
- Qualifying exigencies fall into nine categories: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, parental care, and additional activities agreed between employer and employee.
- Military caregiver leave covers current servicemembers and veterans discharged under conditions other than dishonorable within the five years before the leave begins.
The Glossary of FMLA Terms defines each of these.
When to Re-Test Eligibility
Eligibility is determined, and the eligibility notice given, at the start of the first leave for each qualifying reason in the 12-month period. All absences for that same reason are treated as one leave, and eligibility for that reason does not change during the period. An employee on intermittent leave for a chronic condition is not re-tested before each absence.
You do test again when the employee asks for leave for a different qualifying reason in the same 12-month period (if status has changed, give notice of the change within five business days), when a new 12-month leave year begins, and when an employee found ineligible earlier asks again later.
Notice and Documentation
Within five business days of a request, or of learning that leave may be for a qualifying reason, tell the employee whether he or she is eligible. If the answer is no, the notice must give at least one reason, such as months of service, hours of service, or worksite headcount. The DOL’s optional Form WH-381 combines this with the rights and responsibilities notice. See employer notice duties and deadlines.
Keep a record of the date you assessed eligibility, the calculations and their source, the worksite and headcount you used, and the date the notice went out. Check the facts before you confirm. Some courts have held employers to a mistaken statement of eligibility that an employee relied on, under equitable estoppel; the rule varies by circuit, so ask counsel before reversing a determination.
An employer may not manipulate the tests, for example by moving employees between worksites to stay under 50 or cutting hours to keep someone under 1,250. The regulations treat that as interference. The FMLA Compliance Checklist turns the tests above into auditable steps.
If the Employee Is Not Eligible
"Not eligible for FMLA" is not the same as "no leave rights." Before you answer, check:
- The ADA. Leave can be a reasonable accommodation for an employee with a disability, whether or not the FMLA applies. See when leave becomes a reasonable accommodation.
- The PWFA for limitations related to pregnancy, childbirth, or related medical conditions.
- State and local law. Some states have family and medical leave laws with lower employer thresholds or shorter service requirements; confirm current rules with the state labor agency. Our HR training by state pages are a starting point.
- Your own policy. Leave you offer to employees who are not eligible is company leave, not FMLA leave.
For the full list of lawful grounds, see when an employer can deny FMLA leave.
The two-day Leave and Accommodation Management seminar covers eligibility alongside the ADA, PWFA, USERRA, and workers’ compensation, using realistic scenarios.
Frequently Asked Questions
Do the 12 months have to be consecutive?
No. Separate periods of employment are added together. Service before a break of seven years or more need not be counted unless the break was for military service or a written agreement reflected an intent to rehire.
Does paid time off count toward the 1,250 hours?
No. Only hours actually worked count, under FLSA principles. Vacation, holidays, sick leave, and time on FMLA leave are excluded. Overtime hours worked are included.
Is a remote employee eligible if no coworkers live nearby?
Possibly. The worksite is the office the employee reports to or receives assignments from, not the home. If the employer has 50 or more employees within 75 miles of that office, the test is met.
Can an employee take FMLA leave to care for a parent-in-law or an adult child?
Not for a parent-in-law. For a child aged 18 or older, only if the child is incapable of self-care because of a mental or physical disability when the leave begins. The age limit does not apply to military family leave.
The Bottom Line
Run the tests in order and from real data: coverage, total months of service, hours actually worked, and the assigned worksite. Confirm the reason, send the eligibility notice within five business days, and check the ADA, the PWFA, and state law before telling anyone they have no leave rights. For what comes next, go back to FMLA requirements for employers.
To work through eligibility and overlap cases with an instructor, see the Leave and Accommodation Management seminar. This article is general education, not legal advice.
