(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(b) 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, provided
(1) Subject to the exceptions provided in paragraph (b)(2) of this
section, employment periods prior to a break in service of seven years
or more need not be counted in determining whether the employee has
been employed by the employer for at least 12 months.
(2) Employment periods preceding a break in service of more than
seven years must be counted in determining whether the employee has
been employed by the employer for at least 12 months where:
(i) The employee's break in service is occasioned by the
fulfillment of his or her National Guard or Reserve military service
obligation. The time served performing the military service must be
also counted in determining whether the employee has been employed for
at least 12 months by the employer. However, this section does not
provide any greater entitlement to the employee than would be available
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301, et seq.; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) 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.
(4) Nothing in this section prevents employers from considering
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, the employer must do so uniformly, with respect
to all employees with similar breaks in service.
(c)(1) Except as provided in paragraph (c)(2) of this section,
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.
(2) Pursuant to USERRA, an employee returning from fulfilling his
or her National Guard or Reserve military obligation shall be credited
with the hours of service that would have been performed but for the
period of military service in determining whether the employee worked
the 1,250 hours of service. Accordingly, a person reemployed following
military service has the hours that would have been worked for the
employer added to any hours actually worked during the previous 12-
month period to meet the 1,250 hour requirement. In order to determine
the hours that would have been worked during the period of military
service, the employee's pre-service work schedule can generally be used
for calculations.
(3) 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.
An employer must be able to clearly demonstrate, for example, that
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 (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.
(d) 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 he or she 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." (See Sec. 825.300(b) for rules governing the
content of the eligibility notice given to employees.)
(e) 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; 73 FR 68077, Nov. 17, 2008]
