FMLA Eligibility Requirements: Who Qualifies and How to Determine It

8/6/2026

The Threshold Question: Are You a Covered Employer?

Every FMLA question downstream — how much leave, what certification, what job restoration is owed — depends on one threshold determination: is this employee eligible? Get it wrong in one direction and you deny protected leave. Get it wrong in the other and you can create an entitlement that did not legally exist but that you are now estopped from taking back.

Here is how the determination actually works, in the order you should run it.

Before any employee-level analysis, confirm the employer is covered. The FMLA applies to:

• Private employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year
• All public agencies, including state, local, and federal employers — regardless of the number of employees
• Public and private elementary and secondary schools, regardless of the number of employees

Note that the 20 workweeks need not be consecutive, and the count includes any employee on the payroll for any part of a week — including employees on leave and part-time employees, but not independent contractors.

Public agencies and schools are covered as employers even with fewer than 50 employees. But their individual employees still must satisfy the worksite test described below, which is why small public worksites frequently have no eligible employees despite the employer being covered.

The Three Employee Tests

An employee is eligible only if all three are satisfied.

Note that the worksite test is measured at a different moment than the other two — at the date of notice, not the date leave begins. Once an employee is determined eligible for a particular qualifying reason, a later drop below 50 employees within 75 miles does not strip that eligibility for that leave.

Test 1: Twelve months of employment

The 12 months need not be consecutive. This is the most commonly misapplied rule in FMLA administration.

Key mechanics:

• Employment periods prior to a break in service of seven years or more generally need not be counted — but there are two exceptions. Prior service must be counted regardless of the length of the break if the break was due to National Guard or Reserve military service obligations, or if a written agreement (including a collective bargaining agreement) reflects the employer's intent to rehire.
• Any week in which the employee is on the payroll counts, including weeks on paid or unpaid leave.
• Time spent on the payroll as a part-time or seasonal employee counts toward the 12 months.
• A rehired employee who worked eight months three years ago and has now been back for five months has thirteen months of service and satisfies this test — even though a naive HRIS "hire date" lookup would say five months.

Test 2: 1,250 hours worked

This is the test employers most often get wrong, in both directions.

Only hours actually worked count. The determination uses FLSA principles. That means:

• Paid vacation, PTO, sick leave, and holidays do not count — the employee was not working
• Prior FMLA leave time does not count
• Overtime hours do count
• Time an employee is required to be on duty or on the employer's premises counts

1,250 hours over 12 months is roughly 24 hours per week. Most full-time employees clear it easily; part-time and variable-hour employees are the population where the test actually bites.

The exempt employee problem

Employers are not required to track hours for FLSA-exempt employees. If you do not have accurate records, the employer bears the burden — an exempt employee is presumed to meet the 1,250-hour test unless the employer can show otherwise. Do not deny leave to an exempt employee on an hours theory you cannot document.

Special rules

Airline flight crew employees are subject to a distinct hours-of-service test rather than the standard 1,250-hour rule. Returning servicemembers are credited with the hours they would have worked but for the military service, under USERRA.

Test 3: 50 employees within 75 miles

Two components have to be right here.

Defining the worksite

The worksite is the single location where the employee reports to work, or from which the employee's work is assigned. For employees with no fixed worksite — construction workers, traveling salespeople, remote employees — the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. It is not the employee's personal residence.

That distinction has become the central remote-work FMLA question. A fully remote employee living 400 miles from headquarters is generally counted at the office from which their work is assigned — so they may well be eligible even though there are no other employees within 75 miles of their home.

Measuring 75 miles

Distance is measured by surface miles over public roads, not straight-line distance. Where there is no available surface transportation, the distance is measured by the shortest available route using the mode of transportation actually used.

Counting employees

Count all employees on the payroll — full-time, part-time, and those on leave — employed by the employer within the 75-mile radius. Joint employment matters here: employees jointly employed by two employers are counted by both for coverage and eligibility purposes.

Determining the 12-Month Entitlement Period

Eligibility establishes whether; the 12-month method establishes how much is left. Employers may choose among four methods, and must apply the chosen method consistently and uniformly to all employees:

1. The calendar year
2. Any fixed 12-month period — a plan year, a fiscal year, or the employee's anniversary date
3. The 12-month period measured forward from the date the employee's first FMLA leave begins
4. A rolling 12-month period measured backward from the date leave is used

The rolling-backward method is the most protective for employers because it prevents stacking — an employee cannot take 12 weeks at the end of one period and 12 more at the start of the next for 24 continuous weeks. It is also the most administratively demanding.

If you do not designate a method in your policy, and you change methods without proper notice, the employee gets the benefit of whichever method is most favorable to them. Put the method in the handbook.

Notifying the Employee of the Determination

Eligibility is not just an internal conclusion — it carries a notice obligation. When an employee requests FMLA leave, or when you acquire knowledge that a leave may be FMLA-qualifying, you must provide the Notice of Eligibility and Rights & Responsibilities within five business days. Once you have enough information to determine whether the leave qualifies, you must provide a Designation Notice within five business days.

Two rules with teeth:

• You cannot delay designation. Leave that qualifies must be designated as FMLA and counted against the entitlement. Allowing an employee to exhaust paid leave first and then start the FMLA clock is a violation, not a courtesy.
• You cannot un-designate. If you tell an employee they are eligible and they rely on that to their detriment, you may be estopped from reversing the determination — even if it was factually wrong. Verify before you confirm.

The Eligibility Determination Checklist

1. Confirm employer coverage (50/20 workweeks, or public agency or school)
2. Calculate total months of employment, including non-consecutive prior service and applicable break-in-service exceptions
3. Pull hours actually worked — not paid hours — for the preceding 12 months
4. Identify the employee's assigned worksite, not their home
5. Count all payroll employees within 75 surface miles of that worksite
6. Confirm the qualifying reason and the applicable entitlement (12 workweeks, or 26 for military caregiver leave)
7. Apply your designated 12-month method to determine the balance remaining
8. Issue the Notice of Eligibility and Rights & Responsibilities within five business days
9. Issue the Designation Notice within five business days of having sufficient information

Our FMLA Compliance Checklist expands each of these into an auditable step.

Don't Stop at "Not Eligible"

A finding of FMLA ineligibility does not end the employer's obligations. Check three other doors before responding to the employee:

The ADA

Leave may be a reasonable accommodation regardless of FMLA eligibility, and the ADA covers employers with 15 or more employees. See our ADA Compliance Training.

State leave laws

Many states have family and medical leave statutes with lower employer thresholds, shorter service requirements, or broader family definitions. Several have paid programs. Check the applicable state via our HR Training by State resources.

Your own policy

If your handbook promises leave on more generous terms than the statute requires, the handbook governs.

Frequently Asked Questions

Do the 12 months of employment have to be consecutive?

No. Non-consecutive periods count. Employment before a break in service of seven years or more generally need not be counted, unless the break was due to military service obligations or a written agreement reflects an intent to rehire.

Does paid time off count toward the 1,250 hours?

No. Only hours actually worked count, determined under FLSA principles. Vacation, PTO, holidays, and previous FMLA leave are excluded. Overtime hours are included.

How do I apply the 75-mile rule to a remote employee?

Use the worksite from which the employee's work is assigned or to which they report — typically an office — not the employee's home. Then count all employees within 75 surface miles of that worksite.

What if I can't prove an exempt employee's hours?

The employee is presumed to have met the 1,250-hour requirement. The burden of showing otherwise is on the employer, so do not deny leave on an undocumented hours theory.

Can I take back an eligibility determination I made in error?

Often not. If the employee relied on your confirmation to their detriment, you may be estopped from reversing it. Verify the three tests before issuing the eligibility notice.

Are part-time employees eligible for FMLA?

Yes, if they meet all three tests. There is no full-time requirement — but part-time employees are the group most likely to fall short of 1,250 hours.

The Bottom Line

Run all three tests, in order, from real data: non-consecutive service, hours actually worked, and the assigned worksite. Document the determination, issue the notices within five business days, and check the ADA and state law before telling anyone they have no leave rights.

For structured instruction, explore our FMLA Training Courses, review the FMLA FAQs and Glossary of FMLA Terms, or browse the wider Employment Law Training catalog.