C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart A—Coverage Under the Family and Medical Leave Act

29 C.F.R. § 825.110

Eligible employee

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(a) An eligible employee is an employee of a covered employer who:

(1) Has been employed by the employer for at least 12 months, and

(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave (see § 825.801 for special hours of service requirements for airline flight crew employees), and

(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. See § 825.105(b) regarding employees who work outside the U.S.

(b) The 12 months an employee must have been employed by the employer need not be consecutive months, provided

(1) Subject to the exceptions provided in paragraph (b)(2) of this section, employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months.

(2) Employment periods preceding a break in service of more than seven years must be counted in determining whether the employee has been employed by the employer for at least 12 months where:

(i) The employee's break in service is occasioned by the fulfillment of his or her Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered service obligation. The period of absence from work due to or necessitated by USERRA-covered service must be also counted in determining whether the employee has been employed for at least 12 months by the employer. However, this section does not provide any greater entitlement to the employee than would be available under the USERRA; or

(ii) A written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes).

(3) If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as at least 12 months, 52 weeks is deemed to be equal to 12 months.

(4) Nothing in this section prevents employers from considering employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month employment requirement. However, if an employer chooses to recognize such prior employment, the employer must do so uniformly, with respect to all employees with similar breaks in service.

(c)(1) Except as provided in paragraph (c)(2) of this section and in § 825.801 containing the special hours of service requirement for airline flight crew employees, whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. See 29 CFR part 785. The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA's principles may be used.

(2) An employee returning from USERRA-covered service shall be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining the employee's eligibility for FMLA-qualifying leave. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the hours of service requirement. In order to determine the hours that would have been worked during the period of absence from work due to or necessitated by USERRA-covered service, the employee's pre-service work schedule can generally be used for calculations. See § 825.801(c) for special rules applicable to airline flight crew employees.

(3) In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA's requirement that a record be kept of their hours worked (e.g., bona fide executive, administrative, and professional employees as defined in FLSA Regulations, 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours. An employer must be able to clearly demonstrate, for example, that full-time teachers (see § 825.102 for definition) of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. See § 825.801(d) for special rules applicable to airline flight crew employees.

(d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave. See § 825.300(b) for rules governing the content of the eligibility notice given to employees.

(e) Whether 50 employees are employed within 75 miles to ascertain an employee's eligibility for FMLA benefits is determined when the employee gives notice of the need for leave. Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee's eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee's worksite, for that specific notice of the need for leave. Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.

Notes of Decisions
Cited in 189 cases (31 in the last 5 years), 1995–2026 · leading case: Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134 (2d Cir. 2012).
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Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134 (2d Cir. 2012). · cites it 6× “29 C.F.R. § 825.110 (c)(3). This provision, not cited by the District, plainly provides that the District must prove FMLA ineligibility.”
Carla Mutchler v. Dunlap Mem'l Hosp. Kathy Loede, 485 F.3d 854 (6th Cir. 2007). · cites it 9× “Additionally, the district court found that Plaintiff could not successfully invoke principles of equitable es-toppel, either as set forth in the common law or in the FMLA’s implementing regulation at 29 C.F.R. § 825.110 (d). Plaintiff timely appealed.”
Nancy Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706 (2d Cir. 2001). · cites it 4× “” Moreover, New Rochelle argues she cannot be “deemed eligible” under 29 C.F.R. § 825.110 (d) due to New Rochelle’s failure to notify her of the FMLA requirements because such a determination would be in conflict with the clear statutory definition of an “eligible employee.”
Woodford v. Cmty. Action of Greene Cnty., Inc., 268 F.3d 51 (2d Cir. 2001). · cites it 11× “We hold that the regulation upon which Woodford relies to establish her status as an eligible employee under the FMLA, 29 C.F.R. § 825.110 (d), contravenes the clear intent of the statute it is meant to implement.”
Kathryn Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Cir. 2012). · cites it 4× “” 29 C.F.R. § 825.110 (d). 4 Here, it is undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child.”
Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133 (E.D. Va. 1997). · cites it 11× “Despite Plaintiff’s obvious ineligibility under the statute, Plaintiff argues that he should be deemed an eligible employee under the FMLA by operation of 29 C.F.R. § 825.110 (d) (1996). When the FMLA was enacted, the Secretary of Labor was authorized to promulgate regulations…”
Engelhardt v. S.P. Richards Co., 472 F.3d 1 (1st Cir. 2006). · cites it 4× “Thus, Engelhardt was not an eligible employee under 29 C.F.R. § 825.110 (a)(3). I. SPR, a wholly-owned subsidiary of GPC, is an office supplies wholesaler headquartered in Smyrna, Georgia.”
Davis v. Michigan Bell Tel. Co., 543 F.3d 345 (6th Cir. 2008). · cites it 4× “§ 2611 (2)(A); 29 C.F.R. § 825.110 (a)(2). Davis failed to qualify for FMLA eligibility prior to September of 2004 because she did not meet the 1,250-hour requirement.”
Barron v. Runyon, 11 F. Supp. 2d 676 (E.D. Va. 1998). · cites it 9× “” 29 C.F.R. § 825.110 (a)(2). For the twelve months immediately preceding February 25, 1994, and for the twelve months preceding any date after February 25, 1994, plaintiff worked less than 1,250 hours.”
Cox v. True North Energy, LLC., 524 F. Supp. 2d 927 (N.D. Ohio 2007). · cites it 7× “), the week counts as a week of employment. For purposes of determining whether intermittent/oecasional/casual employment qualifies as “at least 12 months,” 52 weeks is deemed to be equal to 12 months.”
Smith v. Westchester Cnty., 769 F. Supp. 2d 448 (S.D.N.Y. 2011). · cites it 2× “” 29 C.F.R. § 825.110 (d). Eligibility is a threshold issue, and it is insufficient for Plaintiff to “merely assert[ ] in a conelusory manner that he is eligible without stating any facts that relate to the definition of an eligible employee.”
McQuain v. Ebner Furnaces, Inc., 55 F. Supp. 2d 763 (N.D. Ohio 1999). · cites it 7× “Plaintiff counters that he should be considered an eligible employee because Defendant failed to give Plaintiff notice of his ineligibility within two days of the leave period as required by 29 C.F.R. § 825.110 (d) and, therefore, Defendant is estopped from challenging…”
Show all 189 citing cases →
— 29 C.F.R. § 825.110(a) — 2 cases
Coulibaly v. Tillerson, 273 F. Supp. 3d 16 (D.D.C. 2017).
Awadh v. Tourneau, INC (D. Mass. 2018).
— 29 C.F.R. § 825.110(a)(2) — 1 case
Cain v. Jackson Pub. Sch. Dist. (S.D. Miss. 2025).
— 29 C.F.R. § 825.110(b) — 1 case
Cox v. True North Energy, LLC., 524 F. Supp. 2d 927 (N.D. Ohio 2007). “), the week counts as a week of employment. For purposes of determining whether intermittent/oecasional/casual employment qualifies as “at least 12 months,” 52 weeks is deemed to be equal to 12 months.”
— 29 C.F.R. § 825.110(c) — 1 case
Laurent v. Bureau of Rehab., Inc., 544 F. Supp. 2d 17 (D.D.C. 2008).
— 29 C.F.R. § 825.110(c)(3) — 1 case
Lc Bulger v. Detroit Pub. Schs. Cmty. Dist. (Mich. Ct. App. 2025).
— 29 C.F.R. § 825.110(d) — 2 cases
Mascarenas v. City of Albuquerque, 2012 NMCA 31 (N.M. Ct. App. 2012).
Pitre v. The City Of New York (S.D.N.Y. 2024).
— 29 C.F.R. § 825.110(f) — 1 case
Hackworth v. Progressive Cas. Ins., 468 F.3d 722 (10th Cir. 2006).
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