FMLA2000-112 — Intermittent Leave and the 1250 hours test for eligibility

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

September 11, 2000 FMLA-112

Dear
Name*,

Thank you for your letter seeking an opinion on how the 1,250 hours of service test applies under the
Family and Medical Leave Act of 1993 (FMLA) in determining an employee’s eligibility for leave taken
intermittently or on a reduced leave schedule due to a qualifying serious health condition.

You specifically inquired about determining the eligibility of a part-time employee who used intermittent
FMLA leave on a number of occasions due to a chronic serious health condition (multiple sclerosis or
MS). Later in the same year, the employee took six weeks of FMLA leave for another serious health
condition (a hysterectomy). Although she had worked 1,356.75 hours in 12 months preceding the
commencement of this leave, by the conclusion of the leave, she had dropped below 1,250 hours of
service in the preceding year (1,195.25). After her return to work, she again needed leave for her MS.
Because she only worked a part-time schedule, she had worked fewer than the required 1,250 hours in
the 12 months preceding this latest leave. You cited the decision in Barron v. Runyon, 11 F. Supp. 2d 676
(E.D. Va. 1998), and asked how this court decision would apply in determining this employee’s eligibility
for FMLA leave for her MS.

The statute defines an eligible employee in Section 101(2)(A)(i) and (ii) as one who has “been employed .
. . for at least 12 months by the employer with respect to whom leave is requested and for at least 1,250
hours of service with such employer during the previous 12-month period." The FMLA Regulations, at 29
CFR § 825.110 (a)(2), provide that the employee must have performed “at least 1,250 hours of service
during the 12-month period immediately preceding the commencement of leave.” This regulation is
consistent with both the Senate and House Committee Reports, which state that "the employee must . . .
have worked for the employer for at least 1,250 hours of service during the 12 months period
immediately preceding the commencement of the leave.” In addition, § 825.110(d) expressly states
that determinations of whether an employee has worked for the employer for at least 12 months and for
1,250 hours in the past 12 months must be made “as of the date leave commences.” The issue, then, is
what the term “leave” means—whether it encompasses all leave for the same serious health condition, or
whether each intermittent leave absence for the same condition is considered separate leave under the
Act and regulations.

The FMLA regulations define intermittent leave as “leave taken in separate blocks of time due to a single
qualifying reason” (§§ 825.203 and 825.800; emphasis added). This definition is based upon the statutory
provisions and the legislative history pertaining to intermittent leave. The FMLA authorizes employees to
take intermittent leave or leave on a reduced schedule “when medically necessary.” Section 102(b)(1).

The Congressional Committee Reports recognize that some serious health conditions require that an
employee be “absent from work on a recurring basis” rather than for a single block of time, and that
“continuing treatment or supervision may sometimes take the form of intermittent visits to the doctor.”
Intermittent leave may be medically necessary for planned and/or unanticipated medical treatment, or for
recovery from a serious health condition. Intermittent leave may be taken for an employee’s own or a
family member’s serious health condition. Congress confirmed that, when an employee uses intermittent
leave, only the amount of time actually used may be counted against the 12 weeks of leave to which an
employee is entitled. Section 102(b)(1).

The intermittent leave concept assumes alternating periods of absence from and presence at work for the
same FMLA-qualifying reason. If each such absence were treated as a separate period of FMLA leave,
requiring an employee to reestablish eligibility with each absence, there would have been no need for
Congress to codify the concept of intermittent leave. Thus, it is our position that the 1,250-hour eligibility
test is applied only once, on the commencement of a series of intermittent absences, if all involve the
same FMLA-qualifying serious health condition during the same 12-month FMLA leave year. The
employee in such a case remains entitled to FMLA leave for that FMLA reason throughout that 12-month
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

period, even if the 1,250-hour calculation is not met at some later point in the 12-month period during the
series of related intermittent absences.

Once an employee is determined to be eligible for FMLA leave, whether the leave is taken continuously
or intermittently, the statute (§ 102(a)) provides for “a total of 12 workweeks of leave during any 12-month
period for one or more” qualifying reasons. The regulations (29 CFR §§ 825.200(b) through (e)) permit an
employer to choose from four different methods for determining the 12-month period that will be used to
calculate an employee’s FMLA leave entitlement. The four methods are the calendar year, any fixed 12-
month “leave year,” a 12-month period measured forward from the date any employee’s first FMLA leave
begins, and a “rolling” 12-month period measured backward from the date an employee uses any FMLA
leave. Where an employer has selected either the calendar year, fixed year, or the 12-month period
measured forward, it is our position that an employee’s eligibility, once satisfied, for intermittent FMLA
leave for a particular condition would last through the entire current 12-month period as designated by the
employer for FMLA leave purposes. If an employer uses the rolling backward method, an employee’s
eligibility for absence due to a particular condition would continue for 12 months from the date of the first
FMLA absence for the condition. Under all of these methods, eligibility could be re-calculated at the time
of the first absence for the condition after the conclusion of the 12-month period. Furthermore, it is
important to realize that this analysis is separate and distinct from determining whether an eligible
employee’s leave entitlement has been exhausted.

In Barron v. Runyon, the court considered these questions under the FMLA and rendered a decision
consistent with our analysis set forth above. In Barron, the court held that an employee need only
establish eligibility once at the beginning of the intermittent leave, and “an employee who requests
several distinct periods of absence for ‘a single qualifying reason’ is seeking only one period of
intermittent leave.” 11 F. Supp. 2d at 682. The court observed that the rule for determining employee
eligibility based on whether 50 employees are employed within 75 miles (29 CFR § 825.110(f)) is
determined when the employee gives notice of the need for leave and, once eligible, the employee’s
eligibility is not affected by any subsequent changes 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. An employer, for instance,
could not terminate FMLA leave after it has commenced if the employee-count drops below 50. The court
found this regulation “directly analogous to the situation [that] once an employee is determined eligible
based on the number of hours he has worked in the twelve months preceding the first date of the leave,
‘the employee’s eligibility is not affected by any subsequent change in the number’ of hours he worked in
the twelve months prior to any subsequent date on which he takes an absence pursuant to his
intermittent leave for the same medical condition.” Id. The court also concluded that FMLA leave “cannot
be taken ‘forever’ on the basis of one leave request. Instead, the statute grants an employee twelve
weeks of leave per twelve-month period, not indefinitely.” 11 F. Supp. 2d at 683. See also Butler v.
Owens-Brockway Plastic Products, Inc, 5WH Cases 2d 1281 (6th Circuit 1999), in which the court held
that the 1,250 hours of service must be computed from the date of commencement of leave rather than
the date of the adverse action that violated the Act.

The following three examples will help to illustrate how an employee’s eligibility is determined by FMLA’s
1,250-hour test:

1. Assume an employee is diagnosed with an FMLA-qualifying chronic condition, such as MS as in your
example, which results in an employee needing intermittent leave due to the episodic nature of the
condition. For example, if an employee with MS who was eligible to take intermittent FMLA leave in
April and May needed leave again when the episodes of incapacity recurred in July and again in
October, the employee would be entitled to FMLA leave without having to re-qualify under the 1,250-
hour eligibility test so long as the absences occurred within the same 12-month period and the
employee had not exhausted the 12-week leave entitlement for this or any other FMLA-qualifying
reason. If the employee needed leave for MS again in a new 12-month period, the employee would
have to re-qualify under the 1,250-hour eligibility test to be entitled to take FMLA leave for the same
chronic condition in the new 12-month period.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

2. Assume the same facts as in the first example and, in addition, assume that the employee requests
FMLA leave for up to six weeks for another serious health condition that requires major surgery and a
subsequent period of recovery (e.g., a hysterectomy). If, at the time of this second and different
FMLA-qualifying circumstance, the employee met the 1,250-hour eligibility test, the employee would
be entitled to FMLA leave for that (i.e., second) reason. In addition, the employee would also
continue to be eligible for intermittent FMLA leave for the chronic serious health condition (i.e., MS)
for the remainder of the current 12-month period or until the 12-week leave entitlement has been
exhausted.

3. Assume the same facts as in the second example, except at the time of the second and different
FMLA-qualifying circumstance the employee does not
meet the 1,250-hour eligibility test. In this
situation, the employee would not be entitled to FMLA leave for that (i.e., second) reason. Thus, it is
possible that an employee could remain eligible for leave for one FMLA-qualifying reason for which
prior notice had been given when the employee met the 1,250-hour test (i.e., MS), but not be eligible
for FMLA leave for a different FMLA-qualifying reason (i.e., surgery and recovery), due to the 1,250-
hour test being re-calculated at the commencement of the subsequent and separate need for leave.

Our response is based solely upon the information contained in your letter and addresses only the
application of the 1,250-hour eligibility test in the context of intermittent leave. We have assumed that all
other FMLA requirements are satisfied, or are otherwise not an issue.

I trust that our reply is responsive to your request, and apologize for any inconvenience caused by our
delay in not being able to respond sooner to your letter. Please contact this office if you have any
questions or require further assistance.

Sincerely,

T. Michael Kerr
Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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