FMLA Eligibility: Applying the 12-Month, 1,250-Hour and 50-Employee Tests

9/9/2026

Every FMLA request starts with the same three questions, and the employer has five business days to answer them. Has this employee worked here at least 12 months? Did they work at least 1,250 hours in the 12 months before the leave starts? Do we have at least 50 employees within 75 miles of their worksite?

Stated that way, eligibility sounds like a lookup. In practice it is a payroll calculation with several traps: hours paid are not hours worked, rehires carry prior service, military service creates hours that were never worked, remote employees have a worksite that is not their home, and the timing of each test is different. This guide walks through each test the way HR and payroll actually apply it, using the regulation at 29 CFR 825.110 and 825.111, with worked examples.

This guide assumes the employer is already covered by FMLA. Coverage (the 50-employee, 20-workweek test for the employer as a whole) is a separate question from employee eligibility.

The Three Tests at a Glance

Test	Rule	Measured	Regulation
Length of employment	At least 12 months, not necessarily consecutive	As of the date leave starts	825.110(a)(1), (b), (d)
Hours of service	At least 1,250 hours in the 12 months immediately before leave starts	As of the date leave starts	825.110(a)(2), (c), (d)
Worksite size	50 or more employees within 75 miles of the worksite	When the employee gives notice of the need for leave	825.110(a)(3), (e); 825.111

An employee must meet all three. If any one fails, the eligibility notice must give at least one reason, such as the months employed, the hours of service or the worksite count (825.300(b)(2)).

Test 1: Twelve Months of Employment

The basic rule

The employee must have been employed by the employer for at least 12 months. The months do not need to be consecutive (825.110(b)).

Two counting rules make this easier than it sounds:

A week counts if the employee was on the payroll for any part of it, including weeks of paid or unpaid leave during which the employer provided other benefits or compensation, such as workers' compensation or group health coverage (825.110(b)(3)).
For intermittent, occasional or casual employment, 52 weeks is treated as equal to 12 months.

So for a seasonal or on-call employee, you count the distinct weeks they appeared on the payroll. Fifty-two of them, across however many separate stints, satisfies the test.

Rehires and the seven-year rule

Prior employment generally counts. Under 825.110(b)(1), the employer need not count employment periods before a break in service of seven years or more. Breaks shorter than that do not reset the clock.

There are two exceptions where periods before a longer break must still be counted (825.110(b)(2)):

The break was caused by USERRA-covered military service, in which case the military absence itself also counts as employment
A written agreement, including a collective bargaining agreement, shows the employer intended to rehire the employee after the break, for example for education or childrearing

An employer may choose to count employment before a longer break, but if it does, it must do so uniformly for all employees with similar breaks (825.110(b)(4)).

Worked example: the rehire. Dana worked for the company from March 2019 to August 2021 and was rehired in May 2026. In September 2026 she requests leave. Her break in service was under seven years, so her earlier 29 months count, and she meets the 12-month test even though she has been back only four months. She still has to meet the 1,250-hour test, which looks only at the 12 months before the leave starts, and that period includes just four months of work. She is likely to fail the hours test, not the months test, and the eligibility notice should say so.

This is the single most common eligibility error with rehires: the HRIS shows a recent hire date, and someone marks the employee ineligible on months without checking prior service. Keep original hire dates and break-in-service history in a field payroll can report on.

Timing

The months test is measured as of the date the FMLA leave is to start, not the date of the request (825.110(d)). An employee who requests leave at month 11 for a surgery scheduled at month 13 will be eligible when the leave starts. An employee may even be on non-FMLA leave when they cross the 12-month mark, in which case any qualifying leave after that date is FMLA leave.

Test 2: 1,250 Hours of Service

What counts: hours worked under FLSA principles

The hours test is the one that requires payroll data, and it is easy to get wrong because payroll systems are built around hours paid.

Under 825.110(c)(1), whether the employee has 1,250 hours of service is determined under FLSA principles for compensable hours of work (29 CFR part 785). The determining factor is hours the employee actually worked. The regulation adds that the determination "is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked." Any accurate accounting of actual hours worked may be used.

The Department of Labor's FMLA guidance states the consequence directly: paid and unpaid leave, including vacation, sick leave, holidays and FMLA leave itself, are not counted toward the 1,250 hours.

Typically counts	Typically does not count
Regular hours worked	Paid vacation and PTO
Overtime hours worked	Paid holidays not worked
Compensable training and meetings	Paid or unpaid sick leave
Compensable travel during the workday	FMLA leave, paid or unpaid
Off-the-clock work the employer suffered or permitted	Disability or workers' comp leave periods
Compensable on-call time	Severance or pay in lieu of notice

Whether a specific activity is compensable work is decided under the FLSA rules. Our guides to on-call pay rules and travel time pay rules cover two of the most common gray areas.

The 12-month lookback

The hours are counted in the 12-month period immediately preceding the start of the leave, not a calendar year or your FMLA leave year. For leave starting March 15, 2027, you count hours worked from March 15, 2026 through March 14, 2027.

As a rule of thumb, 1,250 hours over 52 weeks averages a little more than 24 hours a week. Full-time employees almost always clear it; the test bites for part-time, seasonal and variable-hour staff, and for full-time employees who spent much of the past year on leave.

Worked example: the part-timer. Marcus is an hourly employee who requests leave starting March 15, 2027. Payroll pulls his last 12 months:

Earnings code	Hours
Regular hours worked	1,140
Overtime hours worked	62
Paid holidays	48
PTO	80
Total hours paid	1,330
Hours worked for FMLA	1,202

On a total-hours-paid report, Marcus clears 1,250 easily. On hours worked, he is 48 short. He is not eligible for FMLA leave on these facts, unless there is evidence of uncounted work. Before sending the notice, check: did he attend unpaid mandatory training? Is pre-shift work or post-shift work happening that the timekeeping system misses? Under 825.110(c), those hours count if they are compensable work, even if they were never recorded.

Worked example: the long leave. Priya, a full-time employee, was out for five months on medical leave (12 weeks of FMLA followed by extended leave under company policy) and returns to work. Seven months later she requests FMLA leave. Her lookback year includes only seven months of work, roughly 1,200 hours at 40 hours a week, and the five months of leave count for nothing. She may fail the hours test despite years of service. The employer still owes her an accurate eligibility determination and notice, and should consider whether state leave law or the ADA provides protection where FMLA does not.

Salaried and exempt employees without time records

Many employers do not track hours for exempt employees. The regulation puts the risk of that on the employer: if the employer does not keep an accurate record of hours worked, including for exempt employees, the employer has the burden of showing that the employee has not worked the requisite hours (825.110(c)(3)). The example the regulation gives is full-time teachers, who often work outside the classroom; the employer must be able to clearly demonstrate they did not work 1,250 hours.

The recordkeeping rule makes the same point from the other direction. Under 825.500(f), an employer need not keep a record of actual hours for FMLA-eligible employees who are exempt from FLSA recordkeeping, provided that it presumes eligibility for any such employee employed at least 12 months. In practice, a full-time salaried employee with 12 months of service should be treated as meeting the hours test unless you have reliable evidence otherwise. Our exempt vs. non-exempt guide covers which employees fall outside FLSA recordkeeping.

USERRA: hours that were never worked

An employee returning from USERRA-covered military service is credited with the hours they would have worked but for the service (825.110(c)(2)). Those hours are added to hours actually worked in the lookback period. The pre-service work schedule is generally used to compute them.

Worked example: the reservist. Luis worked 40 hours a week, was activated for nine months, and returned to work. Three months after returning he requests FMLA leave. His lookback year contains only those three months of actual work, about 520 hours. His credited USERRA hours for the nine months of service, at his pre-service schedule of 40 hours a week, are about 1,560. Total: about 2,080 hours. He is eligible. Without the USERRA credit, he would have failed by a wide margin.

The same USERRA rule applies to the months test: the military absence counts as employment.

Airline flight crew employees have a separate hours-of-service test in 825.801; employers in that industry should apply that section instead.

Test 3: Fifty Employees Within 75 Miles

Identifying the worksite

The count starts from the employee's worksite (825.111(a)):

Normally the site the employee reports to or, if none, the site from which their work is assigned.
Separate buildings can be a single worksite if they are reasonably close, used for the same purpose and share staff and equipment.
For employees with no fixed worksite, such as drivers, field technicians and salespeople, the worksite is their home base, the site from which their work is assigned or to which they report.
For remote employees and telecommuters, the employee's home is not the worksite. Their worksite is the office they report to and from which assignments are made.
For jointly employed workers, such as staffing agency employees, the worksite is the primary employer's office from which they are assigned, unless they have physically worked at least a year at the secondary employer's facility, in which case that facility is the worksite.

Measuring 75 miles

The distance is measured in surface miles, over public streets, roads, highways and waterways, by the shortest route from the employee's worksite (825.111(b)). It is not a radius on a map. Only where there is no surface transportation between sites do you use the most common mode, such as airline miles.

Counting employees

The count is the number of employees maintained on the payroll at sites within that distance (825.111(c)). The same counting principles used for employer coverage apply: part-time employees and employees on leave whom you expect to return are included, while laid-off employees are not (825.105).

Worked example: three locations. A company has three sites:

Site	Employees on payroll	Road miles to Site A	Road miles to Site C
A (headquarters)	32	-	92
B (warehouse)	22	41	58
C (branch)	12	92	-

An employee at Site A counts A plus B (32 + 22 = 54). Eligible on this test.
An employee at Site B counts all three if each is within 75 road miles of B. Using the distances shown (A is 41 miles away, C is 58), that is 66. Eligible.
An employee at Site C counts C plus B (12 + 22 = 34), because A is 92 road miles away. Not eligible on this test, even though the company has 66 employees.
A remote employee in another state who reports to Site A is counted as working at Site A, so the count is 54.

Timing

Unlike the months and hours tests, the 50/75 count is determined when the employee gives notice of the need for leave (825.110(e)). Once the employee is determined eligible in response to that notice, a later drop in headcount does not take eligibility away for that leave. The regulation's example: an employer with 60 employees in August that expects to fall to 40 by December must grant FMLA to an otherwise eligible employee who gives notice in August for leave starting in December.

When to Re-Check Eligibility

Under 825.300(b)(1), eligibility is determined, and the notice given, at the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. All absences for the same reason in that period are treated as a single leave, and eligibility for that reason does not change during the period. That matters for intermittent leave: an employee eligible for intermittent leave for a chronic condition in January does not lose eligibility in June because their hours dropped while taking that leave.

When the employee gives notice for a different qualifying reason, you re-check. If eligibility has changed, for example because hours fell below 1,250 or the worksite count dropped, you must notify the employee within five business days (825.300(b)(3)). The intermittent leave payroll guide covers the pay side of leave that spans several months.

Don't Engineer Ineligibility

The interference rule in 825.220(b) specifically names two eligibility-related manipulations as violations: transferring employees between worksites to keep a site below 50, and reducing hours available to work to avoid employee eligibility. Schedule changes for part-time staff who are approaching 1,250 hours should be driven by documented business reasons, not by the eligibility calendar.

A Payroll Report for Eligibility

Most eligibility errors disappear with one standard report run at the time of each request. Building and owning that report is leave administrator work, the role the Certified Leave Administrator credential is named for. The report should show:

Original hire date, all rehire dates and breaks in service, to test the 12 months
Distinct weeks on payroll, for intermittent and seasonal employees
Hours worked in the 12 months before the leave start date, using hours-worked earnings codes only, with paid leave, holiday and FMLA codes excluded
USERRA service periods, with the pre-service schedule
Worksite assignment from the HRIS, not the employee's home address
Headcount by worksite at the notice date, with road distances between sites kept on file

Keep the report with the eligibility notice. FMLA records must be retained for at least three years (825.500), and if eligibility is ever disputed, this report is what shows how you decided. For more on timekeeping data sources, see options for collecting time and attendance.

Building the Skill

Eligibility is the first decision in every FMLA case, and the one that sets the clock for every notice that follows. It is also where HR and payroll data have to agree. The Certified Leave Administrator program is the site's credential for leave administrators. If the eligibility report above is your job, it is the program to look at.

Frequently Asked Questions

What are the FMLA eligibility requirements?

An employee of a covered employer is eligible if they have worked for the employer at least 12 months (not necessarily consecutive), worked at least 1,250 hours in the 12 months immediately before the leave starts, and work at a site where the employer has 50 or more employees within 75 surface miles. The months and hours are measured as of the leave start date; the 50/75 count is measured when the employee gives notice. The rules are in 29 CFR 825.110 and 825.111.

How do you calculate 1,250 hours for FMLA eligibility?

Count the hours the employee actually worked, under FLSA hours-worked principles, in the 12 months immediately before the date the leave starts. Include regular and overtime hours worked and other compensable time such as required training. Exclude paid and unpaid leave, holidays not worked and prior FMLA leave. Add credited hours for USERRA military service if it applies. If you do not keep accurate hour records, for example for exempt staff, the employer bears the burden of proving the employee did not reach 1,250 hours.

Do PTO and holiday hours count toward the FMLA 1,250 hours?

No. The 1,250-hour test counts hours actually worked, not hours paid. Paid vacation, PTO, holidays not worked, sick leave and FMLA leave, paid or unpaid, are excluded, according to the Department of Labor. This is why a payroll report of total hours paid can overstate eligibility. Use only earnings codes that represent time worked when running the calculation, and check for compensable work that the timekeeping system does not capture.

Do the 12 months for FMLA have to be consecutive?

No. The 12 months need not be consecutive, and any week in which the employee was on the payroll for any part of the week counts. For intermittent or seasonal work, 52 weeks equals 12 months. Prior employment generally counts unless it was before a break in service of seven years or more, and even longer breaks must be counted when caused by USERRA-covered military service or covered by a written agreement to rehire.

How is the 75-mile radius measured for FMLA?

It is not a straight-line radius. Under 29 CFR 825.111(b), distance is measured in surface miles over public roads, highways and waterways by the shortest route from the employee's worksite. The worksite for remote employees is the office they report to, not their home. For employees without a fixed site, such as drivers or field staff, it is the home base from which work is assigned. The count includes all employees on the payroll at sites within that distance.

Can an employee lose FMLA eligibility during their leave?

Not for that leave. Eligibility for a given qualifying reason is determined at the first instance of leave in the 12-month period and does not change for that reason during the period, even if the employee's hours fall. The 50/75 count is fixed once the employee is found eligible in response to their notice, even if headcount later drops. Eligibility can change when the employee requests leave for a different qualifying reason, and the employer must give notice of any change within five business days.