Does Prior Employment Count Toward FMLA Eligibility?
Earlier service with the same employer can count toward FMLA's 12-month employment test, but long breaks, military service, written rehire agreements, and recent hours matter.
Does Earlier Work Count Toward FMLA Eligibility After Rehire?
It can. The federal Family and Medical Leave Act does not require the 12 months of employment to be consecutive. Earlier periods with the same employer generally count when the break in service was shorter than seven years. A break of seven years or more uses a different rule, and military service, a written rehire agreement, or a uniformly more generous employer practice can change the result.
The 12-Month Test Is Only One Eligibility Requirement
Prior service can help with the 12-month employment test without deciding the full FMLA question. For most private-sector employees, the employer also must be covered, the employee generally must have at least 1,250 hours of service during the 12 months immediately before leave starts, and the worksite generally must have at least 50 employer employees within 75 miles. The employee also needs a qualifying leave reason and available leave.
Breaks Shorter Than Seven Years Generally Do Not Erase Earlier Service
Under 29 CFR 825.110, the required 12 months need not be consecutive. Employment before a break shorter than seven years generally remains part of the service-month calculation. The rule looks at employment with the employer, so preserve the original hire date, separation date, rehire date, payroll records, and documents identifying the employing entity rather than relying only on a new employee number or seniority date.
A Break of Seven Years or More Uses a Different Rule
An employer generally is not required to count employment before a continuous break of seven years or more toward the 12-month test, subject to the federal exceptions. That rule does not mean a worker automatically loses every possible leave right after seven years. The exceptions, the employer's own uniform practice, state or local law, a collective bargaining agreement, and other workplace protections may still matter.
USERRA-Covered Military Service Is an Exception
When a long break was caused by a USERRA-covered service obligation, the earlier employment must be counted for the FMLA service-month test. The period of qualifying military absence also counts toward the months of employment. A properly reemployed servicemember must additionally receive credit toward the 1,250-hour test for the hours that would have been worked during the USERRA-covered absence, using the pre-service schedule as a general calculation basis.
A Written Rehire Agreement Is Another Exception
Employment before a break of seven years or more must be counted when a written agreement, including a collective bargaining agreement, shows the employer intended to rehire the employee after the break. Federal regulations give education or childrearing as examples. Save the complete agreement and related communications; an employee's hope of returning or an informal prediction is not necessarily the written agreement described by the rule.
An Employer May Choose a More Generous Uniform Practice
The regulation allows an employer to count service from before a long break even when a federal exception does not require it. If the employer chooses to recognize that older service, it must do so uniformly for employees with similar breaks in service. Handbooks, eligibility calculations, benefit records, and treatment of comparable rehired employees can help show the actual practice.
Payroll Weeks Can Matter for Seasonal or Occasional Work
If an employee is maintained on payroll for any part of a week, including certain paid or unpaid leave periods when benefits or compensation continue, that week can count as a week of employment. For intermittent, occasional, or casual employment, the regulation treats 52 weeks as 12 months. The payroll record, benefit status, and actual relationship matter more than a seasonal or temporary label alone.
Recent Hours Are Calculated Separately
Old service that satisfies the 12-month test does not automatically satisfy the 1,250-hour requirement. Except for special rules such as qualifying USERRA credit and airline flight-crew standards, the hours test generally counts hours actually worked during the 12 months immediately before FMLA leave starts. Paid vacation, sick leave, and other time not worked generally do not count toward 1,250 hours.
Eligibility Is Measured When FMLA Leave Is to Start
The service-month and hours requirements are determined as of the date FMLA leave is to begin. A rehired employee who is not yet eligible when an earlier non-FMLA absence starts may become eligible while still away; the portion after the eligibility date can become FMLA leave when the reason and all other requirements are met. Record the requested start date and any later date on which the eligibility threshold is reached.
The Employer Should Give a Specific Eligibility Notice
When an employer learns that leave may be for an FMLA-qualifying reason, it generally must provide an eligibility notice within five business days, absent extenuating circumstances. If the employee is ineligible, the notice must identify at least one reason. Ask for the service-month calculation in writing when an earlier employment period, military absence, or written rehire agreement appears to have been omitted.
Keep Records That Show the Full Employment Timeline
Preserve offer letters, hire and rehire records, separation notices, pay statements, payroll histories, benefit records, schedules, timecards, military orders and reemployment records, written rehire or collective bargaining agreements, handbooks, eligibility notices, leave requests, and communications about prior service. Build a dated timeline and retain only material you may lawfully keep.
When to Get a Free Consult
Get a free consult if an employer ignored earlier service after a break shorter than seven years, failed to apply a military-service or written-agreement exception, used an unexplained new-hire date, treated similar rehired workers differently, omitted qualifying hours, or followed a leave request with discipline or job loss. This article is general information, not legal advice; rights depend on employer identity and coverage, service and hours records, break length, military or written-agreement facts, worksite size, leave timing, location, and applicable law.
Primary Sources
- eCFR: 29 CFR 825.110 FMLA Employee EligibilityAccessed September 23, 2026
- DOL: FMLA Frequently Asked QuestionsAccessed September 23, 2026
- DOL: Family and Medical Leave Act OverviewAccessed September 23, 2026
- eCFR: 29 CFR 825.300 FMLA Notice RequirementsAccessed September 23, 2026
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