Eligible employees, for purposes of the FMLA, are those working for a covered employer and meeting the following criteria: have been employed by the employer for at least 12 months; have worked at least 1,250 hours during those 12 months; and are employed at a worksite where 50 or more employees are employed by the employer within 75 miles.
The FMLA defines an eligible employee as an employee of a covered employer who meets all the following criteria:
Has been employed by the employer for at least 12 months.
Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.
Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
The FMLA defines employee the same as under the Fair Labor Standards Act (FLSA) — any individual employed by an employer. Any employee, including part-time employees, whose name appears on the payroll must be counted for FMLA purposes. Employers do not count employees who are laid off.
Eligibility
Twelve-Month Employment
An employee must work for a covered employer for at least 12 months to be eligible for FMLA leave. The 12 months of employment are not required to be consecutive and generally, only employment within seven years is counted unless the break in service is:
Due to an employee’s fulfillment of military obligations; or
Governed by a collective bargaining agreement or other written agreement.
If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick or vacation) when the employer provides other benefits or compensation (for example, workers’ compensation or group health plan benefits), then the week counts as a week of employment.
To determine whether intermittent, occasional, or casual employment qualifies as “at least 12 months,” 52 weeks is equal to 12 months.
Employers may (but are not required to) consider employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month employment requirement. However, if an employer chooses to recognize such prior employment, then they must do so uniformly and for all employees with similar breaks in service.
Employment for 1,250 Hours
An employee must have worked at least 1,250 hours during the 12 months before the start of the FMLA leave. The 1,250 hours include only those hours actually worked for the employer, including overtime hours. An employer does not count paid leave, unpaid leave, or sick time toward the 1,250 hours worked.
The following calculations may help estimate whether an employee meets this eligibility test:
Twenty-four hours worked in each of the 52 weeks of the year.
Over 104 hours worked in each of the 12 months of the year.
Forty hours worked per week for more than 31 weeks (or over seven months) of the year.
An employer may rely on any accurate accounting of an employee’s actual work hours under the FLSA to determine whether the employee is eligible for FMLA benefits. If the employer does not keep accurate records of actual hours worked by an employee—including for employees who are exempt from FLSA’s requirement that a record is kept of their hours worked (such as bona fide executive, administrative, and professional employees)—the employer has the burden of showing that the employee has not worked the requisite hours. For example, an employer must be able to clearly demonstrate that full-time teachers of an elementary school or other educational institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave.
The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time the employee meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
Number of Employees and Location of Employment
To be eligible for FMLA leave, employees must work at a worksite where 50 or more employees are employed by the employer within 75 miles of such a location. Employers must make this determination when the employee requests leave.
Once an employee is determined to be eligible in response to the employee’s notice of the need for leave, the employee’s eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee’s worksite, for that specific notice of the need for leave. Similarly, an employer may not terminate employee leave that has already begun if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.
The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. Employees of educational institutions who are employed permanently or who are under contract are maintained on the payroll during any portion of the year when school is not in session.
Worksite
When discussing the eligibility of an employee, the term worksite generally refers to either a single location or a group of contiguous locations. Under the FMLA, structures that form a campus or industrial park, or separate facilities in proximity to one another, may be considered a single site of employment. Conversely, there may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within the building. For example, an office building with 50 different businesses as tenants will contain 50 sites of employment. The offices of each employer will be considered separate sites of employment for purposes of the FMLA. An employee’s worksite under the FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.
Separate buildings or areas that are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages a number of warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.
For employees with no fixed worksite, (such as construction workers or transportation workers) 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.
EXAMPLE
If a construction company headquartered in New Jersey opened a construction site in Ohio and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments. If that construction company also sent personnel (such as job superintendents, foremen, engineers, or an office manager) from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining the eligibility of employees whose home base is the Ohio worksite, but would be counted in determining the eligibility of employees whose home base is New Jersey.
Within 75 Miles of the Worksite
The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation.
Teleworking Employees
The Department of Labor issued guidance on how to apply eligibility rules, specifically the hours worked and worksite location requirements, under the FMLA when employees telework or work away from an employer’s facility. All hours worked are counted for purposes of determining an employee’s eligibility when an employee teleworks from home consistently or in combination with working at another or various worksites.
For FMLA eligibility purposes, an employee’s personal residence is not a worksite. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite. For a teleworker’s eligibility, this worksite threshold is fact-specific to them and based on certain elements of their job. For instance, where does the teleworker report for work? Where is the office where they get their assignments? Either of these locations could be established as their workplace and then the threshold is applied (are there at least 50 employees within 75 miles of that location?).
Airline Flight Crew Employees
The Airline Flight Crew Technical Corrections Act amended the FMLA and ensured that flight crew employees were able to qualify for FMLA benefits to the same extent as other U.S. workers. An airline flight crew employee is an airline flight crewmember or flight attendant. Not all employees that work for an airline will meet the FMLA definition of an airline flight crew employee and therefore would not be subject to these special rules.
To account for the airline industry’s unconventional time-keeping practices, the changes allowed flight crews to qualify more easily for family medical leave by specifying how hours of service requirements are met. Whether an airline flight crew employee meets the FMLA hours of service requirement is determined by assessing the number of hours the employee has worked or been paid over the previous 12 months. An airline flight crew employee will meet the hours of service requirement if, during the previous 12 months, he or she has met both requirements:
Has worked or been paid for not less than 60 percent of the employee’s applicable monthly guarantee.
Worked or been paid for not less than 504 hours.
The applicable monthly guarantee for an airline flight crew employee who is not on reserve status (line holder) is the minimum number of hours an employer has agreed to schedule the employee. The applicable monthly guarantee for an airline flight crew employee who is on reserve status is the minimum number of hours an employer has agreed to pay the employee.
The hours an employee has worked during the previous 12 months are the employee’s duty hours during that time. The hours an airline flight crew employee has been paid during the previous 12 months is the number of hours for which the employee received wages during that time. The 504 hours do not include personal commute time or time spent on vacation, medical, or sick leave.
FILING REQUIREMENTS
All flight attendants or flight crew employers are required to maintain a file with the U.S. Secretary of Labor containing information specifying the applicable monthly guarantee concerning each category of employee to which the guarantee applies.
Rules Applying to Employees of Schools
Certain special rules apply to employees of local educational agencies, including public school boards and elementary and secondary schools under their jurisdiction, and private elementary and secondary schools. The special rules do not apply to other kinds of educational institutions, such as colleges and universities, trade schools, and preschools.
Educational institutions are covered by the FMLA (and these special rules) and the act’s 50-employee coverage test does not apply. The usual requirements for employees to be eligible do apply, however, including employment at a worksite where at least 50 employees are employed within 75 miles. For example, employees of a rural school would not be eligible for FMLA leave if the school has fewer than 50 employees and there are no other schools under the jurisdiction of the same employer (usually, a school board) within 75 miles.
The special rules affect the taking of intermittent leave or leave on a reduced-leave schedule or leave near the end of an academic term (semester) by instructional employees.
Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired; however it does not include—and the special rules do not apply to—any of the following:
Teacher assistants or aides who do not have as their principal job actual teaching or instructing.
Auxiliary personnel such as counselors, psychologists, or curriculum specialists.
Cafeteria employees, maintenance employees, or bus drivers.
Special rules that apply to restoration to an equivalent position apply to all employees of local educational agencies.
Limitations on Intermittent or Reduced-Schedule Leave
Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement.
An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year.
If an eligible instructional employee needs intermittent or reduced-schedule leave to care for a family member or for the employee’s own serious health condition that is foreseeable based on planned medical treatment, and if the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the employer may require the employee to choose to do either of the following:
Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment.
Transfer temporarily to an available alternative position for which the employee is qualified that has equivalent pay and benefits and that better accommodates recurring periods of leave than does the employee’s regular position.
These rules only apply to a leave involving more than 20 percent of the working days during the period over which the leave extends. For example, if an instructional employee who normally works five days each week needs to take two days of FMLA leave per week over several weeks, the special rules would apply. Employees taking leave that constitutes 20 percent or less of the working days during the leave period would not be subject to transfer to an alternative position.
Periods of a particular duration means a block or blocks of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed and may include one uninterrupted period of leave.
If an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced-leave schedule, the employer may require the employee to take leave of a particular duration or to transfer temporarily to an alternative position. Alternatively, the employer may require the employee to delay the taking of leave until the notice provision is met.
Limitations on Taking Leave Near the End of an Academic Term
There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term. Regular rules apply except in certain circumstances:
When an instructional employee begins leave more than five weeks before the end of a term, the employer may require the employee to continue taking leave until the end of the term if:
The leave will last at least three weeks.
The employee would return to work during the three-week period before the end of the term.
When the employee begins leave for a purpose other than the employee’s own serious health condition during the five-week period before the end of a term, the employer may require the employee to continue taking leave until the end of the term if:
The leave will last more than two weeks.
The employee would return to work during the two-week period before the end of the term.
When the employee begins leave for a purpose other than the employee’s own serious health condition during the three-week period before the end of a term and the leave will last more than five working days, the employer may require the employee to continue taking leave until the end of the term.
For purposes of these provisions, academic term means the school semester, which typically ends near the end of the calendar year and near the end of spring each school year. In no case may a school have more than two academic terms or semesters each year for purposes of the FMLA. An example of leave falling within these provisions would be an employee who plans two weeks of leave to care for a family member that will begin three weeks before the end of the term. In that situation, the employer could require the employee to stay out on leave until the end of the term.
Leave Taken During Periods of a Particular Duration
If an employee chooses to take leave for periods of a particular duration in the case of intermittent or reduced-schedule leave, the entire period of leave taken will count as FMLA leave.
In the case of an instructional employee who is required to take leave until the end of an academic term, only the period of leave until the employee is ready and able to return to work will be charged against the employee’s FMLA leave entitlement. The employer has the option not to require the employee to stay on leave until the end of the school term. Therefore, any additional leave required by the employer to the end of the school term is not counted as FMLA leave; however, the employer will be required to maintain the employee’s group health insurance and restore the employee to the same or equivalent job including other benefits at the end of the leave.
Restoration to an Equivalent Position
The determination of how an employee is to be restored to an equivalent position upon return from FMLA leave will be made based on established school board policies and practices, private school policies and practices, and collective bargaining agreements. The established policies and collective bargaining agreements used as a basis for restoration must be in writing, must be made known to the employee before taking FMLA leave, and must clearly explain the employee’s restoration rights upon return from leave. Any established policy that is used as the basis for the restoration of an employee to an equivalent position must provide substantially the same protections as provided in the act for reinstated employees. In other words, the policy or collective bargaining agreement must provide for restoration to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. For example, an employee may not be restored to a position requiring additional licensure or certification.
Same-Sex Marriages
Eligible employees in a legal marriage can take leave under the FMLA to care for a same-sex spouse regardless of where they live.
The definition of spouse is a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages. The definition of spouse includes a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.
Notice of Eligibility
When an employee requests FMLA leave (or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason), the employer must notify the employee of their eligibility to take FMLA leave within five business days, absent extenuating circumstances.
The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible, and as applicable:
The number of months the employee has been employed by the employer;
The number of hours of service worked for the employer during the 12-month period; and
Whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
Notification of eligibility may be oral or in writing.
If at the time an employee provides notice of another need for FMLA leave during the applicable 12-month period due to a different FMLA-qualifying reason, and the employee’s eligibility status has not changed, no additional eligibility notice is required.
If, however, the employee’s eligibility status has changed (for example, if the employee has worked less than 1,250 hours of service for the employer in the 12 months before the beginning of leave for the second qualifying reason or the size of the workforce at the worksite has dropped below 50 employees), the employer must notify the employee of the change in eligibility status within five business days, absent extenuating circumstances.
Note: Employee eligibility is determined (and notice must be provided) at the beginning of the first instance of leave for each FMLA qualifying reason in the applicable 12-month period. All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.
Review
To qualify for FMLA leave, an employee must have worked for a covered employer for 12 months, although not necessarily 12 consecutive months.
To qualify for FMLA leave, an employee must have worked for a covered employer for at least 1,250 hours during the 12 months immediately preceding the start of the FMLA leave.
For calculation purposes, employees working 24 hours a week for 52 weeks or over 104 hours a month for 12 months or 40 hours a week for more than 31 weeks will have met the 1,250-hour minimum.
Employers must keep accurate records of employee hours or it is assumed the employee has qualified for FMLA leave.
Employees who are exempt from FMLA minimum wage or overtime requirements must only meet the 12-months requirement to qualify for FMLA leave. Employers carry the burden to prove otherwise.
Special rules concerning intermittent or reduced schedule FMLA leave apply to employees of public elementary and secondary schools and their boards but not to employees of colleges, universities, trade schools, and preschools.
Eligible instructional employees requiring intermittent or reduced-schedule leave for more than 20 percent of the number of days over which the leave would extend may be required to take leave for the entire period or to transfer temporarily to an available alternate position that better accommodates recurring leave.
Eligible instructional employees beginning leave more than five weeks from the end of a term who will be taking more than three weeks of leave and who will be returning from leave during the last three weeks of the term may be required to continue taking leave until the end of the term.
Eligible instructional employees who will be taking leave for other than personal serious health conditions during the last five weeks of a term may be required to continue leave until the end of the term if the leave will last more than two weeks and if they would return to work during the last two weeks of the term.
Eligible instructional employees taking leave for other than their own serious illness during the last three weeks of a term may be required to continue leave through the end of the term if the leave will last more than five working days.
Restoration of an eligible instructional employee to an equivalent position must be based on established policies and agreements of the school board and unions and must follow guidelines laid down in the act for reinstated employees.
Employers must notify employees requesting FMLA leave of their eligibility or ineligibility for such leave as soon as practicable or it may be assumed the employees are eligible for this leave.