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- First gate: whether the employer is covered
- Second gate: the employee eligibility test
- Remote employees still have an assigned worksite
- Third gate: a qualifying reason for leave
- How disability and FMLA eligibility relate
- Eligibility is measured when leave begins
- Notice allows the employer to identify possible FMLA leave
- Federal eligibility is only one layer
- Sources
Key Facts
- Federal level: Ordinary FMLA eligibility generally requires 12 months of employment, at least 1,250 hours of service during the preceding 12 months, and work at a site where the employer has at least 50 employees within 75 miles.
- Federal level: Private employers generally are covered when they employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year; public agencies and covered schools follow separate coverage rules.
- Federal level: A disability label alone does not establish an FMLA right; the leave reason must fit a statutory category, such as the employee’s own serious health condition that makes the employee unable to perform the job.
- Federal level: The 12 months of employment generally need not be consecutive, although federal regulations limit how older breaks in service are counted.
FMLA eligibility requirements operate as a series of separate gates. The employer must be covered, the worker must qualify as an eligible employee, and the requested leave must be for a reason protected by the federal statute. Meeting one gate does not automatically satisfy the others.
This article focuses on the eligibility test. The broader FMLA guide explains leave amounts, job protection, and the overall federal framework.
First gate: whether the employer is covered
The FMLA covers a private-sector employer that employed 50 or more employees in 20 or more calendar workweeks in the current or preceding calendar year. Federal, state, and local public agencies are covered without the same 50-employee threshold, and public and private elementary and secondary schools also are covered employers.
Employer coverage and individual employee eligibility are different questions. A large organization may be covered while a particular employee still fails the worksite, service-month, or hours test.
Second gate: the employee eligibility test
An eligible employee generally must have worked for the employer for at least 12 months. Those months need not be consecutive, but employment before a continuous break of seven years generally is excluded unless the break involved National Guard or Reserve military service or a written agreement concerning the employer’s intent to rehire.
The employee also must have at least 1,250 hours of service during the 12 months immediately before leave begins. Hours of service use principles under the Fair Labor Standards Act, so the calculation focuses on hours actually worked and generally does not count paid or unpaid leave.
The final ordinary gate is geographic. The employee must work at a site where the employer employs at least 50 employees within 75 miles of that site. The distance is measured by surface miles over public streets and highways, waterways, or other customary routes rather than by a straight line.
Remote employees still have an assigned worksite
For an employee with no fixed worksite, the FMLA worksite is not the person’s home. The regulation generally uses the office to which the employee reports or from which assignments are made. That rule can make the location of the supervising or assigning office important when applying the 50-within-75-miles test.
Third gate: a qualifying reason for leave
Eligibility status does not make every absence FMLA leave. The statute protects leave for the birth and care of a child, placement for adoption or foster care, care of a spouse, child, or parent with a serious health condition, the employee’s own serious health condition that makes the employee unable to perform the job, and specified military-family reasons.
A serious health condition generally involves inpatient care or continuing treatment by a health care provider under the detailed regulatory definitions. Common short-term conditions are not automatically excluded, but they must satisfy the applicable inpatient-care or continuing-treatment standard.
How disability and FMLA eligibility relate
“Disability” is not a stand-alone FMLA eligibility category. A physical or mental condition may support FMLA leave when it amounts to a serious health condition and causes the kind of incapacity or treatment recognized by the statute and regulations.
The Americans with Disabilities Act uses a different definition and serves a different purpose. A condition may implicate the ADA without qualifying for FMLA leave, may qualify under the FMLA without meeting the ADA definition, or may fall within both laws. The separate inquiries should not be collapsed into a single disability test.
Eligibility is measured when leave begins
The 12-month and 1,250-hour requirements generally are measured as of the date FMLA leave is to start. An employee can therefore become eligible after giving notice of a future need but before the first day of leave.
Once an eligible employee begins a period of FMLA leave for a qualifying reason, later crossing below the 50-employee worksite count does not ordinarily end eligibility for that leave period. The regulations also contain special rules for airline flight crews and certain employees returning from military service.
Notice allows the employer to identify possible FMLA leave
An employee does not have to recite the words “FMLA leave” when first requesting time away, but must provide enough information for the employer to understand that the absence may qualify. An employer may seek permitted information and certification, while the employee remains responsible for complying with applicable notice and certification rules.
When the employer learns that leave may be FMLA-qualifying, federal regulations generally require an eligibility notice within five business days, absent extenuating circumstances. Eligibility and designation are distinct: the first addresses whether the employee meets the threshold test, while the later designation addresses whether the particular leave counts as FMLA leave.
Federal eligibility is only one layer
The federal FMLA does not displace more protective state family-leave laws or more generous employer policies. State programs may use different employer-size, service, wage, family-member, or qualifying-reason rules. A federal eligibility result therefore does not answer every question about workplace leave in a particular state.
Sources
- 29 U.S.C. § 2611: FMLA definitions
- 29 U.S.C. § 2612: Leave entitlement and qualifying reasons
- 29 C.F.R. § 825.110: Eligible employee
- 29 C.F.R. § 825.111: Determining the worksite
- 29 C.F.R. § 825.115: Continuing treatment for a serious health condition
- U.S. Department of Labor Fact Sheet #28: The Family and Medical Leave Act
