If you’ve been rehired by a former employer, your earlier time on the payroll can count toward FMLA eligibility. FMLA eligibility for rehires turns on one number: the length of the gap between your two periods of employment. When the break in service was seven years or less, the employer must count your prior months of service and hours worked toward the 12-month and 1,250-hour requirements. When the break was longer, the employer can generally treat you as a new hire, with two important exceptions.
The Seven-Year Break-in-Service Rule
The FMLA regulations set a bright line at seven years. If the time between your separation date and your rehire date is seven years or less, all of your prior employment with that employer counts toward both eligibility tests: the 12 months of service and the 1,250 hours worked in the 12 months before leave begins.1eCFR. 29 CFR 825.110 – Eligible Employee
If the gap exceeded seven years, the employer is generally free to disregard the earlier employment entirely. Someone who worked at a company for a decade, left nine years ago, and just returned would start over at zero months of credited service. That result can feel harsh, but it is the default rule.
Exceptions That Reach Past Seven Years
Two situations require the employer to count prior service no matter how long the break lasted.
The first is military service covered by the Uniformed Services Employment and Reemployment Rights Act. If your break in service was caused by USERRA-covered military obligations, the employer must count both your earlier employment and the time you spent in service toward the 12-month requirement.1eCFR. 29 CFR 825.110 – Eligible Employee The hours you would have worked during the military absence also get credited toward the 1,250-hour test, added to hours actually worked in the 12 months before leave. A service member who worked six months for an employer, deployed for eight years, and then returned gets credit for the original six months plus the deployment period.
The second is a written agreement contemplating your return. If the employer put in writing, including through a collective bargaining agreement, that you would be rehired after the break, your prior service counts regardless of the length of the gap.1eCFR. 29 CFR 825.110 – Eligible Employee The regulation mentions educational leave and childrearing as examples, but the exception isn’t limited to those reasons. A verbal promise doesn’t trigger it; the agreement has to be in writing.
How the 12 Months of Service Add Up
To be FMLA-eligible, you need 12 months of employment with the same employer, and those months don’t have to be consecutive.1eCFR. 29 CFR 825.110 – Eligible Employee Separate periods of employment combine. Eight months during your first stint plus four months since being rehired equals 12 months on the date leave would begin.
Any week you appeared on the payroll for any part of the week counts, including weeks of paid vacation, sick leave, or other paid absence where the employment relationship stayed intact. The date the FMLA clock is measured against is the date leave is scheduled to start, not the day you request it.
Reaching Back Into Your Prior Job for 1,250 Hours
Meeting the 12-month tenure test is only half of eligibility. You also need at least 1,250 hours actually worked in the 12 months immediately before the leave start date.1eCFR. 29 CFR 825.110 – Eligible Employee Paid time off doesn’t add to this total. Only hours on the clock do.
For a rehire, the 12-month look-back window can stretch backward into the previous stint. If you were rehired six months ago, the window covers your six months back plus six months from the earlier employment period. Hours from both periods combine. About 1,250 hours works out to roughly 24 hours a week over a full year; a 40-hour-a-week schedule clears the threshold in about 31 weeks. Part-time workers, seasonal staff, and anyone with a big gap inside the look-back window are the most likely to fall short.
If your prior job was salaried and exempt, and the employer didn’t keep detailed hours records, the burden shifts to the employer to prove you didn’t hit 1,250 hours.1eCFR. 29 CFR 825.110 – Eligible Employee In practice, that creates a strong presumption in favor of full-time salaried employees. The regulation uses full-time teachers as an example: an employer arguing that teachers fell short has to show it clearly, accounting for work done outside the classroom and at home.
What Prior FMLA Leave Does to Your Current Entitlement
Eligible employees get up to 12 workweeks of FMLA leave in a 12-month period. The employer picks how that 12-month period is defined: the calendar year, a fixed span like a fiscal year or your anniversary date, a period measured forward from your first day of leave, or a rolling window measured backward from each day of leave.2U.S. Department of Labor. Fact Sheet 28H – 12-Month Period Under the Family and Medical Leave Act
The method your employer uses controls whether leave you took before separating still eats into your balance now. Under a rolling look-back, FMLA leave taken eight months ago during your prior stint would reduce what’s available today. Under a calendar-year method, leave from a previous calendar year is off the books. Ask which method applies before assuming you have a full 12 weeks. If the employer never formally selected a method, the rule requires using whichever one is most beneficial to you.2U.S. Department of Labor. Fact Sheet 28H – 12-Month Period Under the Family and Medical Leave Act
When It Isn’t Really a Rehire
Sometimes what looks like a rehire is a corporate change in disguise. If the company you worked for was sold, merged, or reorganized and the new employer qualifies as a “successor in interest,” the transition is treated as if you never changed employers. There is no break in service to calculate.3eCFR. 29 CFR 825.107 – Successor in Interest Coverage
Whether a new employer is a successor depends on a totality of the circumstances. Regulators look at:
- Continuity of operations, meaning whether the business does substantially the same work in the same place
- Workforce retention, meaning whether the same employees kept working after the transition
- Management similarity, meaning whether supervisors and working conditions stayed consistent
- Equipment and methods, meaning whether the same machinery, processes, and products or services remain in use
No single factor decides it. When a successor relationship exists, the new employer must count all prior service and hours with the predecessor, honor any leave already in progress, and continue group health benefits during that leave.3eCFR. 29 CFR 825.107 – Successor in Interest Coverage A corporate reorganization does not reset your FMLA clock if the successor test is met.
Coverage and Worksite Size Still Have to Be Met
Even with your service and hours locked in, FMLA eligibility requires the employer itself to be covered and your worksite to be large enough. Private-sector employers are covered if they employed 50 or more workers during at least 20 workweeks in the current or preceding calendar year. Public agencies and all public and private elementary and secondary schools are covered regardless of headcount.4eCFR. 29 CFR Part 825 Subpart F – Special Rules Applicable to Employees of Schools
You also have to work at a location where at least 50 employees are stationed within a 75-mile radius.5U.S. Department of Labor. Family and Medical Leave (FMLA) A rehire who is assigned to a small satellite office in a rural area could meet every service and hours test and still fall outside FMLA because of that worksite rule. Check it early; it has nothing to do with your own history.