Taking FMLA an hour at a time — who qualifies, how the time is charged, and where the entitlement quietly runs out

Eligibility is three tests, and the hours one catches people out

Under 29 CFR 825.110 an eligible employee has been employed by the employer for at least 12 months, has 1,250 hours of service in the 12-month period immediately before the leave begins, and works at a site where the employer employs 50 or more people within 75 miles. All three are measured as of the date the leave is to start.

The 12 months need not be consecutive, and employment before a break in service of seven years or more need not be counted — with exceptions for USERRA-covered military service and for a written rehire agreement. Any week you are carried on the payroll counts, including weeks of paid or unpaid leave.

The 1,250 hours are the trap. They are hours of service determined by the Fair Labor Standards Act principles for compensable hours of work, so paid holidays, vacation and sick days do not count towards them. That is roughly 24 worked hours a week for a full year, which quietly excludes a large part of the part-time workforce — and it can exclude someone whose last year was itself heavy with unpaid leave.

Which reasons you can take in pieces without asking

For your own serious health condition, for a spouse, parent, son or daughter with one, or to care for a covered servicemember, 825.202(b) makes intermittent leave available where there is a medical need for leave and that need is best accommodated by an intermittent or reduced schedule. There is no employer veto; the certification carries the argument. Leave for a qualifying exigency arising from a family member's covered active duty may likewise be taken intermittently under 825.202(d).

Bonding is the exception. Where leave follows the birth or placement of a healthy child, 825.202(c) permits an intermittent or reduced schedule only if the employer agrees — and agreement is not required where the expectant mother has a serious health condition connected with the birth, or the newborn has one. Running the other way, 825.203 obliges the employee to make a reasonable effort to schedule planned treatment so as not to disrupt unduly the employer's operations. That is a scheduling duty, not a veto, and it does not touch the unforeseeable flare-up.

The counting rules are where the entitlement is won or lost

825.205(a)(1) fixes the increment: no greater than the shortest period the employer uses to account for any other form of leave, and in no case greater than one hour. If annual leave is tracked in one-hour blocks and sick leave in half hours, FMLA must be charged in half hours. An employer may use a shorter increment than it uses elsewhere, and doing so does not reset the benchmark. Employees may never be charged FMLA leave for periods during which they are working.

The entitlement may not be reduced by more than the amount of leave actually taken, and the actual workweek is the basis. Eight hours off a 40-hour week is one-fifth of a week. A full-timer on four-hour days uses half a week. Someone contracted for 30 hours who works 20 uses one-third of a week for each such week. Employers may convert those fractions to hours provided the conversion reflects the hours the employee would actually have worked.

Two things do not count. Under 825.200(h), where leave is taken in increments of less than a week a public holiday falling in that week is not charged unless the employee was scheduled and expected to work it; and where the employer's business activity has temporarily ceased, those days are not charged at all. WHD applied that to school closures in opinion letter FMLA2026-1 on 5 January 2026: for an employee on intermittent leave, only the days actually worked and taken as leave are counted.

One thing does count, and it surprises both sides. In FMLA2026-2, issued the same day, the Division concluded that travel to and from a medical appointment for a serious health condition is itself FMLA leave — part and parcel of obtaining the treatment — and that a health care provider need not estimate the travel time on the certification, because a provider's knowledge does not extend to how long a patient's journey takes.

Four ways to define the leave year, and one moves under you

825.200(b) lets an employer choose any one of four methods for the 12-month period, applied consistently to everyone: the calendar year; any fixed 12-month year, such as a fiscal year or each employee's anniversary; a period measured forward from the date the first FMLA leave begins; or a rolling 12-month period measured backward from each day of leave taken.

The first three give a clean reset date, and allow twelve weeks at the end of one year followed by twelve at the start of the next. The rolling method never resets, so an employee taking leave in pieces can fall in and out of protection without anything changing at work.

Two safeguards sit around the choice. If the employer never selected a method, 825.200(e) applies whichever option is most beneficial to the employee, and 60 days' notice is required both to adopt one and to switch. Military caregiver leave is outside all of it: 26 workweeks in a single 12-month period measured forward from the first day of that leave, whatever the employer uses for everything else.

Certification, and how often they may ask again

The employer may require certification and must give at least 15 calendar days to return it. If it is incomplete or insufficient, 825.305(c) obliges the employer to say so in writing, state what is missing, and allow seven calendar days to cure. A certification that is never returned is not incomplete — it is a failure to certify, and the leave may be denied.

For intermittent leave the employer may ask for an estimate of the frequency and duration of episodes, or the dates and duration of planned treatments, and no information may be required beyond what 825.306 to 825.308 allow. Under 825.307 an employee's direct supervisor may never contact the health care provider — only a health care provider, HR professional, leave administrator or management official may, and only to authenticate or clarify the form. A second opinion is at the employer's expense; a third, jointly designated, is final and binding.

Recertification is the pressure point on long-running intermittent leave. The default is no more often than every 30 days and only in connection with an absence. Where the certification states a minimum duration longer than 30 days the employer must wait for that to expire, but may recertify every six months in connection with an absence regardless — including for a lifetime condition — and sooner where the frequency, duration or severity described has changed significantly. So the estimate you give at the outset is worth some thought: 825.308(e) lets the employer hand the provider your absence record and ask whether it fits the condition.

Whether any of it is paid, and who decides

FMLA leave is unpaid, and either side may require accrued paid leave to be substituted so the two run concurrently. Substitution follows the employer's normal paid-leave policy; if you fail its procedural requirements you lose the pay, not the leave. But where the absence is already being paid — a disability plan or workers' compensation — the leave is not unpaid, so neither side can compel substitution, and topping up to full salary is by agreement only.

Attendance points, and the two claims that follow

This is the most common live dispute. 825.220(c) states that employers cannot use the taking of FMLA leave as a negative factor in discipline, promotion or hiring, nor may FMLA leave be counted under no-fault attendance policies. Interference under 825.220(b) is broader than refusal — it expressly includes discouraging an employee from using leave, and manipulation such as reducing hours or moving staff between worksites to defeat the 50-employee threshold. One nuance runs the other way: a bonus tied to a goal such as perfect attendance may be withheld where the goal was missed because of FMLA leave, unless employees on an equivalent non-FMLA leave status still receive it. The point on your record is unlawful; the lost bonus usually is not.

The employer's strongest answer is almost always notice rather than the merits. For unforeseeable leave 825.303(c) requires compliance with the employer's usual and customary call-in procedures absent unusual circumstances. And once FMLA leave has been granted for a reason, the employee must specifically reference that qualifying reason or the need for FMLA leave when calling in again — the regulation says in terms that calling in "sick" without more is not sufficient notice. Two words on a voicemail is how a protected absence becomes an unexcused one.

Restoration has its own ceiling. 825.216 gives an employee no greater right than if they had been continuously employed: if the post would have been eliminated regardless, the obligation ends, though the employer carries the burden of proving it. And where a continuing condition means the essential functions cannot be performed, the FMLA right to restoration does not apply — the point at which a different statute takes over. See wrongful termination and employer limits on medical information.

Where the ADA and state law give more

825.702 requires the employer to provide leave under whichever provision gives the greater right, and insists the two be analysed separately: a "disability" under the ADA and a "serious health condition" under FMLA are different concepts, and an employee may have one without the other. The ADA allows leave of no fixed length as a reasonable accommodation, barring undue hardship, and it carries on after the twelve weeks are exhausted — though it brings no duty to maintain group health coverage, which FMLA does. State and local paid family leave programmes are a third layer again, with their own eligibility rules and no 1,250-hour test.

Two numbers decide most of what follows, and both arrive in one email to HR: which of the four leave-year methods the employer applies, and the smallest increment it uses for any other kind of leave. The first tells you how much entitlement you have this month rather than this year; the second tells you what a two-hour appointment costs. Ask before the appointment rather than after it, log the dates yourself with a deadline tracker, and check your own state programme before accepting that nothing else is available — several reach employers far smaller than fifty people.