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The Family and Medical Leave Act (FMLA) is a federal law that permits employees to take job-protected, unpaid leave for certain family and medical reasons. According to the U.S. Department of Labor – Wage and Hour Division, to be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

One of the questions the employment attorneys at Spitz, The Employee’s Law Firm were recently confronted with was how an employee’s military service affects his or her eligibility for FMLA leave. The federal regulations governing the FMLA provide that a break in service due to an employee’s fulfillment of military obligations must be taken into consideration when determining whether an employee has been employed for 12 months or has the required 1,250 hours of service.

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), hours that an employee would have worked but for his or her military service are credited toward the employee’s required 1,250 hours worked for FMLA eligibility. Similarly, the time in military service also must be counted in determining whether the employee has been employed at least 12 months by the employer.

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The lesson? Employers must take care in calculating the hours and months an employee has worked by taking into account the employee’s military service. Failure to do so may subject the employer to a lawsuit for unlawfully interfering with the employee’s exercise of his or her rights under the FMLA.

If you believe that your employer has discriminated or retaliated against you because of your membership in the armed forces or because you have exercised your rights under the FMLA, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and initial consultation.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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