Human Resources News & Insights

Secrets to managing FMLA: Setting the FMLA clock

Employees need to work at least 1,250 hours in a year to qualify for FMLA leave. But the lines can often blur regarding what counts as hours worked. Here’s some clarification.

To be eligible for FMLA, an employee must have worked for a company for at least 12 months (not necessarily consecutively) and logged 1,250 work hours in the previous year. However, not all hours count toward the 1,250. Here’s an example:

An employee opted to wrk in a “weekender program,” a 12-hour shift on Saturdays and Sundays. For doing so, she received a bonus equivalent to 10 hours’ pay. When she asked to take FMLA leave for a surgical procedure, her employer balked – according to its records, she hadn’t worked the required 1,250 hours.

The woman took the time anyway, and was fired.

She sued, claiming that she would have met the 1,250-hour requirement if her employer had included the 10 hours as actual time worked.

But the judge sided with the company. The bonus hours were an incentive, not time actually worked. So they didn’t count toward the FMLA threshold.

Cite: Mutchler v. Dunlap Memorial Hospital, 2007

Eligibility guidelines

Case in point: The FMLA hourly requirement isn’t exactly straightforward. But here are some guidelines on employee eligibility and FMLA:

The 1,250 work hours are defined by the Fair Labor Standards Act. Paid or unpaid vacation, paid or unpaid sick time, previous FMLA leave or other leave hours don’t count towards the 1,250.

Even if an employee continues to use intermittent leave for an extended period of time, companies can apply the test for 1,250 work hours only once in the FMLA year.

It’s important to remember that an employee needs to satisfy both the 1,250 work-hour and the 12-month eligibility requirement to take FMLA leave. There are several options for determining the 12-month eligibility period:

  • The calendar year
  • Any fixed 12-month period, like a fiscal year
  • The 12-month period that begins with the first day of FMLA or
  • A “rolling” 12-month period that’s measured backward from the date the employee uses any FMLA leave.
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  • We have an employee who worked through a temp agency for 500 hrs and then we hired him as a regular employee. He has asked for intermitten leave but has not worked for us as an employee on our payroll 1250 hours yet. Is he eligible? Do we have to count the temp agency hours?

  • Excellent question. Looks like the answer is that the hours worked as a temp do count towards the 1,250.

    Even when he was a temp and on someone else’s payroll, your company was considered a “joint employer,” so the hours count. A similar situation was addressed in a court case in 2004 (Mackey v. Unity Health System). In the judge’s words: “For FMLA eligibility purposes, an employee’s term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee.”

    Hope that helps clear things up.

    Sam Narisi

  • Kerri-Mae Bramwell

    We have recently decided as a company to use the 12 month rolling period to count FLMA – for some reason this seems to give the person more time. Do I just not understand clearly how to count backwards? Is anyone using this accounting system that could shed some light on the situation?

  • Laura

    Does anyone know if this applies to 401(k) eligiblity as well?

  • Beth

    We also use the 12 month rolling period to count FMLA time. This was on the advice of our attorney. It actually is more employer friendly but more confusing to track. If you use the calendar method then an employee could take three months at the end of the year and three months at the beginning of the year and be off 24 consecutive weeks, same thing with anniversary dates. So say an employee has used six weeks in January and then in June they ask for six weeks. If you count back from the day in June that they need leave and count back 12 months then they are only entitiled to six weeks. The would not be eligible for more time until January of the next year.

  • How about an employee that has stated they have a back injury and can not go on outings; simple walks with the preteen kids. This is a requirement of the position and we have allowed her to not do the hiking, but now it is any activity. This injury happened at home slipped on stairs 1 year ago and she now is stating she can not even do the simple walks. The employee has never really liked the outdoor act ivies, but it is a part of her job. Does she fall under ADA? what can I do to make this work we have accommodated her as much as we can. There is no doctors note or letters stating she can not partake in act ivies.

  • Teri,

    If an employee can’t perform the “essential functions” of a job, even with a reasonable accomodation, he or she isn’t protected by the ADA. Also, if you think she is simply trying to avoid a part of the job she doesn’t like, you might want to ask for a doctor’s note to support her claims.

    Sam Narisi

  • Pingback: FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update 6-10()

  • Mandy K

    Does non-required overtime count toward the 1,250-hour eligibility requirement, particularly if it is not a part of the employee’s normal work schedule, but is rather on an as-needed basis?

  • Teresa

    Is a employer able to require and schedule an employee to work an extra 12 hour shift to make-up for a 12 hour shift not worked that was covered under FMLA and pto hours were used.

  • shell

    This article says you can only apply the 1250 hourly requirement once per year. That is not correct. You would evaulate hours again (mid year) if the employee has a new/different reason for needing the leave. If they met the requirement for their own SHC (asthma as an example) and they used 7 weeks. Then later in the year they broke their foot…you would STILL check to see if they have worked the 1250 hours within the 12 months immediately preceding the NEW leave.

  • Laura

    We run a 24/7 operation in 12 hr shifts. My ees work 3 days during week 1, 4 days week 2, 3 days week 3, 4 days week 4 and so on rotating each week. How do I count their 12 weeks of time off? Do I count each Mon-Fri week they would of worked or count the days they missed until they equal ‘7’ days missed equaling one week. Also, since the shifts are 12 hrs long does it still equal only one day or does the number of hours make a difference? Please advise.

  • Susan Soccol

    An employee comes in to apply for a leave but is not eligible because they have not yet met the year of service criteria. They will however met the year of service requirement within a few weeks and has met the 1,250 hours requirement. Can the FMLA become effective on the day that they reach the year of service requirement even if they are currently out on a LOA?

  • shell


  • Maria

    We use th 12 rolling system. The employee was out last year from May 5, 2008 to July 28, 2008 as FMLA. When is the eployee elegible again? On May 5, 2009?