(a) An ``eligible employee'' is an employee of a covered employer
who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the
12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. (See
Sec. 825.105(a) regarding employees who work outside the U.S.)
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months. If an employee is maintained on
the payroll for any part of a week, including any periods of paid or
unpaid leave (sick, vacation) during which other benefits or
compensation are provided by the employer (e.g., workers' compensation,
group health plan benefits, etc.), the week counts as a week of
employment. For purposes of determining whether intermittent/occasional/
casual employment qualifies as ``at least 12 months,'' 52 weeks is
deemed to be equal to 12 months.
(c) Whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles established under the
Fair Labor Standards Act (FLSA) for determining compensable hours of
work (see 29 CFR Part 785). The determining factor is the number of
hours an employee has worked for the employer within the meaning of the
FLSA. 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 for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used. In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR Part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
In the event the employer is unable to meet this burden the employee is
deemed to have met this test. See also Sec. 825.500(f). For this
purpose, full-time teachers (see Sec. 825.800 for definition) of an
elementary or secondary school system, or institution of higher
education, or other educational establishment or institution are deemed
to meet the 1,250 hour test. An employer must be able to clearly
demonstrate that such an employee did not work 1,250 hours during the
previous 12 months in order to claim that the employee is not
``eligible'' for FMLA leave.
(d) The determinations 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 leave commences. If an employee notifies the employer of
need for FMLA leave before the employee meets these eligibility
criteria, the employer must either confirm the employee's eligibility
based upon a projection that the employee will be eligible on the date
leave would commence or must advise the employee when the eligibility
requirement is met. If the employer confirms eligibility at the time the
notice for leave is received, the employer may not subsequently
challenge the employee's eligibility. In the latter case, if the
employer does not advise the employee whether the employee is eligible
as soon as practicable (i.e., two business days absent extenuating
circumstances) after the date employee eligibility is determined, the
employee will have satisfied the notice requirements and the notice of
leave is considered current and outstanding until the employer does
advise. If the employer fails to advise the employee whether the
employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible. The employer may not,
then, deny the leave. Where the employee does not give notice of the
need for leave more than two business days prior to commencing leave,
the employee will be deemed to be eligible if
the employer fails to advise the employee that the employee is not
eligible within two business days of receiving the employee's notice.
(e) The period prior to the FMLA's effective date must be considered
in determining employee's eligibility.
(f) Whether 50 employees are employed within 75 miles to ascertain
an employee's eligibility for FMLA benefits is determined when the
employee gives notice of the need for leave. Whether the leave is to be
taken at one time or on an intermittent or reduced leave schedule basis,
once an employee is determined eligible in response to that 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 started 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.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
