Family Medical Leave Act – Eligibility of Employees

The federal Family Medical Leave Act (FMLA) provides “eligible” employees up to 12 weeks of medical leave to take care of their own medical needs and those of certain family members. The FMLA also provides eligible employees up to 26 weeks of leave in the case of a family member who is an injured service member.

This Article addresses when an employee is considered “eligible” for Family Medical Leave. Note that an employee must be eligible at the time the leave is to commence.

Length of Service

The employee must have worked for the employer for at least 12 months. These 12 months of employment need not be consecutive and, if the employee had a break in service of less than seven years, prior time working for the employer is generally counted.

Number of Hours Worked in Past Year

The employee must have worked at least 1,250 hours within the 12 months immediately preceding the beginning of the leave. The 1,250 hours of service does not include time during which an employee performs no work, even if it is paid (such as for holidays or paid vacation). Time off that the employee took for National Guard or Reserve military service is required to be included in determining whether the employee worked 1,250 hours in the past 12 months.

Number of Employees at the work site

An employer does not have to provide FMLA leave for any site at which the employer has less than 50 employee within a 75-mile radius of the site. As a result, an employer who has a branch office located more than 75 miles from another site with more than 50 employees need not provide leave under the FMLA. Note, however, if the employer’s handbook or other policies provide FMLA leave for all employees, the employer will need to follow its own policies. If an employee works out of his or her home (for example, a salesperson), the site size is the site from which the employee’s work is assigned, or to which the employee reports.

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