Compliance guide

FMLA Eligibility and the 1,250-Hour Test

Praisidio compliance research team

Quick answer

Who is eligible for FMLA leave?: An employee with 12 months of service, 1,250 hours worked in the preceding 12 months, at a worksite with 50 or more employees within 75 miles.
Does PTO count toward the 1,250 hours?: No. Only hours actually worked count. Paid vacation, holiday and sick time are excluded.
What if we do not track hours for exempt staff?: The employee is presumed eligible and the employer must prove otherwise.

Due:         No filing. Determination is made per leave request.
Applies to:  Employers with 50+ employees in 20+ workweeks in the current
             or preceding calendar year
Governed by: 29 CFR Part 825 (DOL Wage and Hour Division)

The Family and Medical Leave Act is not a filing. It is a determination you have to make, correctly, every time an employee requests leave - and the determination is made almost entirely out of payroll and time data. The rules live in 29 CFR Part 825 and WHD Fact Sheet #28.

Three tests, all of which must be met

12 months of employment. The months need not be consecutive. A break in service of seven years or more generally need not be counted, with exceptions for military service and written agreements.
1,250 hours of service in the 12 months immediately preceding the start of leave.
A worksite with 50 or more employees within 75 miles.

What counts toward 1,250 hours

1,250 hours means FLSA hours worked. Paid vacation, holidays, sick leave and other paid non-working time do not count, even though they are paid and even though they appear in payroll. Overtime hours do count, because they are worked.

This is the opposite of the rule in several other regimes - the San Francisco HCSO counts hours paid, for instance - which is exactly why teams get it wrong when they reuse one hours definition across programmes.

Exempt employees and the burden of proof

Under 29 CFR 825.110(c)(3), if the employer does not maintain records of hours worked - the normal situation for exempt salaried staff - the employee is presumed to have met the 1,250-hour test, and the burden falls on the employer to show otherwise. In practice this means a default assumption of full-time hours is the safer administrative position for exempt employees.

Entitlement and the 12-month period

Eligible employees get 12 workweeks of leave in a 12-month period, or 26 workweeks for military caregiver leave. Employers choose one of four methods for defining the 12-month period: the calendar year, any fixed 12-month year, a period measured forward from first use, or a rolling 12 months measured backward from each use. The method must be applied uniformly.

What data this filing needs

✓Actual hours worked per employee for a rolling 12 months, excluding paid leave
✓Original hire date, and prior service periods for rehires
✓Worksite assignment with a geocoded address
✓Headcount by worksite, plus all worksites within 75 miles
✓Employer-wide headcount by workweek, for the 50-in-20-workweeks test
✓Prior FMLA usage under whichever 12-month method you have adopted

Where it goes wrong

Counting paid leave toward the 1,250 hours. The single most common error, and it inflates eligibility.
Exempt employees with no hours records. The presumption runs against the employer.
The 75-mile radius measured as the crow flies. It is surface miles over public roads.
Rehires treated as new starters. Prior service usually counts toward the 12 months.
Mixing 12-month methods across employees, or changing method without proper notice.

Frequently asked questions

Do the 12 months of employment have to be consecutive?

No. Prior periods generally count, subject to a seven-year lookback limit with exceptions.

Does overtime count toward 1,250 hours?

Yes. Any hour actually worked counts.

Does FMLA leave itself count toward the next year's 1,250?

No. FMLA leave is unworked time.

What about an employee returning from military service?

USERRA requires crediting the hours they would have worked.

How is the 75-mile radius measured?

By surface miles over public roads, not straight-line distance.

Can we change our 12-month method?

Yes, with 60 days' notice, and the transition must not reduce any employee's entitlement.

Are remote employees covered?

Their worksite is the office they report to or receive assignments from, not their home.

What if an employee is close to 1,250 but not over?

Eligibility is tested as of the date leave begins, so a request for future leave may need to be re-tested.

Systems supported: Praisidio reads from payroll, HRIS, time and attendance, benefits administration and scheduling systems - see the full integrations list.

This guide is general information about reporting requirements, not legal advice. Verify current deadlines, thresholds, rates and penalty amounts against the issuing agency before you file.