Benefits and Compensation, HR Management & Compliance

Ask the Expert: Is There Any Flexibility in FMLA Eligibility?

In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding political discussions (and disagreements) in the workplace.

fmla qualification

Q: I have an employee who has requested FMLA and has worked for us for 11 months, but has worked 1908 hours in that time. Is there any flexibility in meeting the required 12 months of employment and the 1250 hours to be eligible for FMLA?

A: When an employer experiences growth and is projected to employ 50 or more employees, it can and should enact policies and assess its practices for compliance with employment laws. Twelve months is the triggering number for compliance under the Family and Medical Leave Act (FMLA) and several other laws and therefore is an important threshold.

In addition to the federal FMLA, some states have their own comprehensive family leave laws that may also require employers to grant employees time off for the birth or adoption of a child or to care for a family member with a serious illness.

Meeting the Qualifications

Without overarching state laws to dictate family leave policy, an employee must meet each of the following requirements to be eligible for FMLA leave:

  • Work for a covered employer
  • Have worked for the employer for at least a total of 12 months
  • Have worked at least 1,250 hours over the 12 months immediately preceding the need for leave
  • Work at a location where at least 50 employees are employed by the employer within 75 miles of the worksite. See 29 CFR Part 825 et seq.

Please find additional information concerning the FMLA and state-specific application on our Leave of Absence (FMLA) topic analysis page at For general laws and guidance please see the Department of Labor’s FMLA site at

You indicated that the employee has worked at your company for a total of 11 months and 1908 hours. If an employee has worked for 1908 hours but only 11 months, that employee is not yet eligible to take FMLA leave. All the elements, as noted above, must be met in order for the FMLA to apply.

An Employer’s Choice

However, note that as an employer, a company is free to offer leave benefits such as paid or unpaid leave equal to or greater than the FMLA would grant to employees so long as such leave is granted evenhandedly to avoid disparate impact.

This will help the company avoid any potential claims of discrimination. You should contact your local labor law attorney to review current company policies and language in your employee handbook regarding leave to assist with any updates or clarifications your company wishes to provide going forward.

While your employee may not be eligible for FMLA leave at this time, the Americans with Disabilities Act (ADA) may still apply and provides protection for disabled workers such that the employer is obligated to engage in an interactive process and determine if a reasonable accommodation is needed to assist with their employment. This is also best accomplished through a meaningful handbook policy. So make sure that you are in compliance with any and all ADA regulations as well.

Due to the complexity and importance of complying with FMLA requirements and the intersection with your company’s own leave policies, you should contact your local labor law attorney in this matter.

Ask the Expert is a service provided to subscribers of BLR®’s HR Hero product, where experts are ready with answers to your organization’s unique questions surrounding HR compliance. To learn more and request a demo of HR Hero, click here.

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