FMLA Eligibility

Q.       An employee who has requested Family and Medical Leave Act (FMLA) leave has been with us for only 11 months but has worked 1,908 hours in that time. Does he have to meet both the 12 months of employment and the 1,250 hours to be eligible for FMLA?

A.       Yes, FMLA eligibility requires an employee to be employed for at least 12 months and have worked 1,250 hours during that 12-month period. However, there are exceptions. These exceptions allow the 12-month period to be met if the employee has worked a total of 12 months within the past seven years under certain circumstances outlined in the federal regulations. Generally, this exception applies within that period if an employee has fulfilled a covered military service obligation, or a written agreement exists showing an employer’s intent to rehire an employee after a break in service.

Courts have also interpreted the term “employee” to be broadly inclusive of individuals who have worked in a part-time or temporary capacity prior to being hired full time or have spent time working for a company’s predecessor in interest.

Additionally, be aware that the 12-month employment requirement is determined by the leave-commencement date. If the employee has provided you with notice of an intention to take FMLA leave at a date after he reaches the 12-month mark, he will have met both requirements by the time he needs leave, and is, therefore, eligible.

Finally, it should be noted that the FMLA’s 12-month employment provision was intended to protect employers. The provision allows the employer the discretion to waive the 12-month requirement to allow the employer to adopt a more generous leave policy.

Jason R. Mau is a shareholder of the firm’s litigation, employment, environmental and natural resources and real estate practice teams. His practice is primarily in real estate, commercial and employment litigation in federal and state courts. He is also involved in the transactional work for his clients in these areas. To reach Jason, call 208-562-4898 or send an email to