United States — Leave Laws

The Family and Medical Leave Act (FMLA) applies to private-sector employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Public agencies (including federal, state, and local government employers) are covered regardless of the number of employees. Local educational agencies, including public and private elementary and secondary schools, are also covered regardless of employee count.

Source: 29 U.S.C. § 2611(4)(A)) | DOL Fact Sheet #28

An employee is eligible for FMLA leave only if the employee meets all three of the following requirements at the time the FMLA leave is to start:

1. Twelve-month tenure. The employee has been employed by the employer for at least 12 months. The 12 months need not be consecutive; however, employment periods prior to a break in service of seven years or more generally do not count, unless the break was due to fulfillment of National Guard or Reserve obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA), or the employer and employee had a written agreement stating that the prior service would count.

1. 1,250 hours of service. The employee has worked at least 1,250 hours of service with the employer during the 12-month period immediately preceding the commencement of leave. The "hours of service" calculation follows FLSA principles for determining compensable hours of work—only actual time worked counts, not paid time off, vacation, or other paid leave. Employees returning from USERRA-covered military service are credited with the hours they would have worked but for the period of service.

1. Worksite location. The employee is employed at a worksite where the employer employs 50 or more employees within 75 miles of that worksite. This requirement is evaluated when the employee gives notice of the need for leave; once an employee is determined eligible, subsequent changes in employee count do not affect eligibility for that leave request, even if the count drops below 50 before or during the leave period.

Special hours-of-service rule for airline flight crew employees. Flight attendants and flight crewmembers (as defined by FAA regulations) meet the hours-of-service requirement if they satisfy both of the following in the 12 months preceding leave: (a) worked or been paid for at least 60% of the applicable total monthly guarantee (or equivalent), and (b) worked or been paid for at least 504 hours, not counting personal commute time or time spent on vacation or medical/sick leave.

The 12-month and 1,250-hour requirements are evaluated as of the date the FMLA leave is to start. An employee who is already on non-FMLA leave when these thresholds are met becomes eligible for FMLA protections at that point, and any leave taken for an FMLA-qualifying reason after the eligibility requirement is satisfied is counted as FMLA leave.

Exclusions. The statutory definition of "eligible employee" excludes two categories: (1) federal officers or employees covered under 5 U.S.C. chapter 63, subchapter V (who have a separate federal-employee FMLA regime), and (2) employees who work at a site where fewer than 50 employees are employed within a 75-mile radius.

Source: 29 U.S.C. § 2611(2)(A)) | 29 C.F.R. § 825.110