Who Is Eligible For FMLA Leave?

Find out which employees -- and which situations -- qualify for FMLA leave.

By , J.D. · UC Berkeley School of Law

The federal Family Medical Leave Act (FMLA) gives eligible employees the right to take time off work, without pay, for certain health conditions and caregiving responsibilities. However, not every company, every employee, or every reason for leave is protected by the FMLA.

To figure out whether your company has to provide FMLA leave to an employee, you must ask yourself three questions:

Your company is legally obligated to provide FMLA leave only if the answer to all three of these questions is "yes."

Is Your Company Covered by the FMLA?

Your company is covered by the FMLA if it employed 50 or more employees for 20 or more weeks in the current or preceding year. Independent contractors don't count toward the total, but you must include:

  • all full-time employees
  • all part-time employees
  • employees who are on leave (if they are expected to return to work), and
  • employees who work jointly for your company and another company.

The 20 weeks need not be consecutive. As long as your company had at least 50 employees during any 20 weeks of this calendar year or the previous calendar year, it is covered by the FMLA.

Is the Employee Eligible for FMLA Leave?

An employee is eligible for FMLA leave only if all three of these conditions are met:

  • The employee must work at a worksite with 50 or more employees within a 75-mile radius. This means that a small group of employees who work at a distant satellite office might not be eligible to use the FMLA, even if your company has thousands of employees. The 75-mile radius must be determined based on actual routes (streets, highways, and so on) that could be traveled between company worksites, not "as the crow flies."
  • The employee must have worked for your company for at least 12 months. These months need not be consecutive. You must count all of the employee's work time, even if the employee has had a break in service with your company, unless that break lasted for seven years or more. And, you must make this determination as of the date the employee's leave will start, not the date the employee requests leave.
  • The employee must have worked at 1,250 hours during the 12-month period immediately preceding the employee's leave. This works out to just over 24 hours a week.

Does the Employee Need Leave for an FMLA-Protected Reason?

Only certain situations and reasons for leave are covered by the FMLA. They are:

  • Leave for the employee's own serious health condition. Not every medical ailment is covered; see Serious Health Conditions Under the FMLA.
  • Leave to care for a family member with a serious health condition. Leave is also available to take care of a family member whose health condition qualifies under the FMLA, but an employee may take time off to care for only a parent, spouse, or child under this provision. Other family members aren't covered.
  • Parental bonding leave. Employees may take time off to be with a new child, during the first year after the child is born or placed for adoption or foster care.
  • Qualifying exigency leave. If an employee's family member is called or deployed to active military duty, the employee may take FMLA leave to handle certain issues arising from that service.
  • Military caregiver leave. An employee with a family member who suffers or exacerbates a service-related illness or injury may take FMLA leave to provide care. More family members are covered under this provision, and employees may be entitled to more time off.

Contact an Attorney

If your employer has denied your request to take FMLA leave, or has retaliated against you for using such leave, contact an employment law attorney to discuss your legal options.

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