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Employee Eligibility

Release Date: January 22, 2009

The new regulations clarify that for purposes of calculating 12 months of employment with an employer for employee eligibility, a break in service with that employer of 7 years or less will not render the employee ineligible for leave (subject to certain exceptions). Previously the employee could take a break in service for up to 5 years and still remain eligible for FMLA leave. The regulations further clarify that an employee can attain the 12 month eligibility while out on leave, as long as the employee has satisfied the 1,250 hours of service requirement for eligibility prior to taking leave. For example if an employee has worked for the employer for 11 months and has completed 1,250 hours of service with that employer and the employee goes out on an approved leave of absence (such as sick leave or workers compensation leave for one month) the employee will become eligible to take 12 weeks of FMLA at the end of that additional month. Thus the employee will become eligible for FMLA leave after having worked for 11 months and then taken 1 month of approved leave.