Manager confused looking at a lot of forms

The federal Family and Medical Leave Act (FMLA) has many complex components that can be difficult for employers and employees to understand. Just to name a few examples: explaining “Rolling Back”; “Joint Employers”; and the definition of “Appropriate Medical Facts,” are all elements of FMLA that cause confusion. Although eligibility is usually one of the more well-defined and easily understood FMLA concepts, even this topic can lead to confusion. Under Federal Regulation 29 CFR 825.110, there is a thorough outline of what makes up an employee’s FMLA eligibility requirements. Let’s pick it apart a bit to point out a few land mines and clarify when an employee is eligible or not eligible for FMLA.  

  1. An eligible employee is an employee of a covered employer…  

For this we have to scroll back to 29 CFR 825.104, which outlines a ”covered employer.”  Whether or not an employer has 50 or more employees is basic math; however, there are some “gotcha” moments.  

  • There only needs to be 50+ employees for 20 or more calendar workweeks in the current calendar year or the preceding one. Once an employer meets that threshold, then it is an eligible employer for the current calendar year, as well as the following year, even if the employee population drops below 50.  
  • There is no “75-mile radius rule” for the employer.  
  • Public agencies and private elementary and secondary schools don’t have the 50-employee rule. 

We’re not going to dive into “successors in interest,” or else this blog would get lengthy. If you’re interested, you can check out the link to the Federal Regulations provided above.  If you’re unsure of how to count employees to determine if they count for a week, 29 CFR 825.105 can assist. One interesting nugget to point out is to remember that if the employee is on payroll, regardless of whether or not they receive pay, that is considered a week of employment toward the 20 workweeks in the calendar year.  

Moving on:  

  1. (1) Has been employed by the employer for at least 12 months… 

Note what was indicated above. Simply being on payroll equates being employed.  

  • The 12 months do not have to be consecutive unless the break in service is greater than seven years.  
  • The exception to the bullet above is if the break in service is a result of an employee fulfilling their duties covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA), then this time counts toward their 12 months of service in the same manner as if they had been actively and continuously at work.  
  • Similar to the USERRA exception, the regulations allow for continuous service if there is a collective bargaining agreement (CBA) that covers breaks in service.  

Although you don’t have to count a break in service of more than seven years, you may do so. Just remember to be consistent in this approach. If you do it for one, it must be done for all.  

Now that we are clear on length of service, let’s move on to the next section:   

  1. (2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave… 
  • The FMLA gives a nod to the Fair Labor Standards Act (FLSA) for establishing the rules if an employee is considered to have “worked” compensable hours. Those rules can be found here 
  • Actual hours are to be used. An employee who is compensated time and a half for overtime or holiday pay is not credited 1.5 hours toward their 1,250 hours. Equally, compensation agreements that do not accurately account for the hours an employee works also do not override the “actual hours worked” rule.  
  • The burden of proof of whether an employee has or has not worked sufficient hours is entirely on the shoulders of the employer. As the example given by the Department of Labor (DOL), if a teacher works outside normal classroom hours and states they believe they are eligible, it is up to the employer to have adequate documentation if they are claiming the teacher has not.  
  • Much like the length of service requirement, USERRA provides another exception to this rule. If an employee is on a qualified USERRA absence, that time away must count toward their hours of service as though they had worked that time. Therefore, if an employee returns to work just two weeks after being deployed for 14 months and requests a leave under the FMLA, your payroll records may show they have only worked 70 hours. Be sure not to deny them due to not having met their hours worked requirement, as they are to be credited 35 hours per week for the full duration of their USERRA absence.  

The above bullets may only be a few short paragraphs, but it is easy to see how complicated calculating eligibility can become, despite the belief by some employers that it is just basic math. Payroll systems are rarely the perfect answer. There is an additional complicated exception specific to Airline employees, which may be found here. If you have employees in this industry and would like to better understand how ReedGroup can provide clarity, please note additional ReedGroup informationhere. 

Now to wrap up the final eligibility requirement:  

  1. (3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.   

This final item is complicated enough to warrant its own section in 29 CFR 825.111, so let’s point out a few of those aforementioned landmines.  

  • As with the hours worked and length of service, determining if an employee is employed within 75 miles of the worksite is based on the number of employees maintained on payroll.  
  • As Airline employees are an exception to the hours worked rule, educational institutions have additional complexities, because often teachers are not working during weeks or months where school is not in session, but they remain on payroll and there is a reasonable expectation that they are returning after break. 
  • A single building does not necessarily equate to a single worksite. If there are multiple buildings close together, that is a single worksite.  
  • An employee’s worksite is usually defined based on where the employee reports.  
  • Given the significant increase in work-from-home employees, those who do not have a fixed worksite must be looked at from where they receive their direction when determining if they are at an eligible worksite. This holds true for employees that work-from-home or those who travel, like a truck driver.  
  • The 75 miles is measured by the surface miles, as used for transportation. Whatever is the shortest route possible is to be used. If it would take somebody driving 92 miles to get from one location to the next, but it is only a two-mile public ferry ride, then those two locations are counted as being only two miles apart.  

If you have employees outside the U.S., take note to review thoroughly 29 CFR 825.105(b), which states, “…the FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any Territory or possession of the United States. Employees who are employed outside these areas are not counted for purposes of determining employer coverage or employee eligibility.” 

There you have it! It is really only skimming the surface, but all of these areas must be understood and accurately calculated before an employer can determine if an employee is or is not eligible for time under the FMLA.  

What Employers Should Do 

 Employers should ensure that current systems for tracking employee headcount, length of service, and hours credited toward the 1,250 hours worked requirement are in place and maintaining accurate records. Consistent management for all employees is imperative to ensure there is no issue of discrimination. At minimum, an employer is wise to remember that the burden of proof for eligibility sits with them. If an employee expresses concern that they have been erroneously denied eligibility, extend rights under the FMLA until an accurate accounting can be made or grant them eligibility if proof otherwise cannot be established without a doubt.  

What ReedGroup Is Doing 

As a third-party administrator, ReedGroup works with clients every day to assist them in understanding their programs and improving processes. Reducing risk by communicating eligibility and identifying these exceptions to the commonly misunderstood rules is just one way ReedGroup provides expert advice and management of the FMLA. 

We know FMLA is complex, and that’s why our Absence Management University webinar series has TWO FMLA webinars, tailored to address the issues faced by large employers. Our first 2023 FMLA webinar is on February 14 – you can register here.  

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here. 


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

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