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Fact Sheet #28I: Counting Leave Use under the Family and Medical Leave Act

January 2024

The Family and Medical Leave Act (FMLA) provides job-protected leave from work for family and medical reasons.

This fact sheet explains how to count the amount of leave available and amount of leave used under the FMLA.


The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

  • Work for a covered employer for at least 12 months,
  • Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
  • Work at a location where the employer has at least 50 employees within 75 miles.

Covered employers: Covered employers under the FMLA include:

  • Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year,
  • Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
  • Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

The FMLA protects leave for:

  • The birth of a child or placement of a child with the employee for adoption or foster care,
  • The care for a child, spouse, or parent who has a serious health condition,
  • A serious health condition that makes the employee unable to work, and
  • Reasons related to a family member’s service in the military, including:
    • Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
    • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.


Eligible employees have the right to use up to 12 workweeks of FMLA leave in a 12-month period, and up to 26 workweeks of leave in a single 12-month period for military caregiver leave. The employee’s actual workweek is the basis for determining the employee’s FMLA leave entitlement. An employee does not accrue FMLA leave at any particular hourly rate.

Converting workweeks to hours. Employees’ entitlement to FMLA leave may be converted from workweeks to an hourly equivalent for ease of tracking. Conversion of an employee’s FMLA entitlement to an hourly equivalent must be based on the employee’s total normally scheduled hours. For example, if an employee is regularly scheduled to work 50 hours per week, they are entitled to 600 hours of FMLA leave in a 12-month period.

Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used. For example, an employee who normally works 30 hours a week but works only 20 hours in a week because of FMLA leave would use one-third of a week of FMLA leave.

In most cases, even employees whose schedules are subject to seasonal variations have an established schedule and verifiable work history that can be used to determine the days and hours they are expected to work. However, when an employee’s schedule varies so much that the employer is unable to determine how many hours the employee would have worked during the week the employee takes FMLA leave, the employer may use a weekly average to calculate the employee’s FMLA leave entitlement. The weekly average is determined by the hours scheduled over the 12 months prior to the beginning of the leave and includes any hours for which the employee took any type of leave.

12-month period. Employees take FMLA leave in a defined 12-month period or “leave year.” When an employee’s need for FMLA leave extends beyond the 12-month leave year, the additional time the employee requests may be available in the next leave year. For more information about the 12-month leave year, see Fact Sheet #28H. For information about the single 12-month period that applies to military caregiver leave, see Fact Sheets #28M(a), Military Caregiver Leave for a Current Servicemember under the FMLA or #28M(b), Military Caregiver Leave for a Veteran under the FMLA,


An employee may not be required to use more FMLA leave than is needed for a qualifying reason. Employees may use FMLA leave in whole weeks, single days, hours, or in some cases less than an hour. Employees may use FMLA leave in the smallest unit of time made available by their employer for other types of leave, as long as that smallest unit of time is not greater than an hour.

Only the amount of leave an employee actually takes from work may be counted against an employee’s FMLA leave entitlement.

Likewise, time an employee is not scheduled to report for work may not be counted as FMLA leave. If employees are not expected to report for work for one or more weeks—for example, if they work at a school that closes two weeks for the winter holiday, or a plant that closes for a week for repairs—the days the employer’s business activities have stopped do not count against the worker’s FMLA leave.


  • Ginger works Sunday through Thursday. She does not work on Fridays or Saturdays. Ginger receives treatment from a health care provider on Thursdays and Fridays for a serious health condition. She uses FMLA leave when she receives treatment on Thursdays but does not need to take FMLA leave for the treatment she receives on Fridays, which is a non-workday for Ginger.
  • Jackson’s father has a serious health condition. Jackson works offshore for two weeks and has two weeks off before he returns to work. Jackson helps his sister with his father’s care when he is off work. He does not use FMLA leave when he is not scheduled to work.
  • Overtime. Required overtime hours that an employee does not work because of an FMLA-qualifying reason may be counted as FMLA leave. Voluntary overtime hours that an employee does not work because of an FMLA-qualifying reason may not be counted as FMLA leave.
  • Holidays. When a holiday falls during a week in which an employee is taking FMLA for the whole week, the entire week is counted as FMLA leave.


  • Brennan uses 12 weeks of FMLA leave to bond with his newly placed foster child. His leave ends the week after Thanksgiving. Even though he would not have had to work on Thanksgiving Day, his week off that includes Thanksgiving Day counts as one whole workweek of FMLA leave.
  • When a holiday falls during a week when an employee is taking FMLA leave for less than the full week, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.


  • Mavis typically works Monday through Friday. While using FMLA leave intermittently, Mavis works Monday and Friday and uses FMLA leave on Tuesday and Thursday. One week, there is a holiday on Wednesday. Mavis is also off on Wednesday, but because it is a holiday and she was not scheduled to work that day, the time off on Wednesday does not count against her total FMLA entitlement.
  • Dario is scheduled to work on the President’s Day holiday when he has an unexpected need for FMLA leave to care for his child with a serious health condition. Dario’s time off from work on the holiday counts as FMLA leave.

When FMLA leave runs concurrently with other types of leave. FMLA leave is unpaid leave. However, an employee may request, or an employer may require the employee, to use accrued paid vacation leave, sick leave, personal time, etc. for some or all of the FMLA leave period. When an employee uses FMLA leave at the same time as another type of leave, such as paid sick leave or vacation leave, the employee’s leave use counts as FMLA leave and must be protected under the FMLA.


Physical impossibility. In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is protected leave and is counted as FMLA leave. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents them from boarding the train before it leaves for its scheduled trip or when a flight attendant is scheduled to work aboard an airplane.

Airline flight crew employees. An eligible airline flight crew employee has the right to use up to 72 days of FMLA leave in a 12-month period, and up to 156 days of military caregiver leave during a single 12-month period.

When an airline flight crew employee uses FMLA leave for less than a full workweek, the time off may be counted in units of time of no greater than one day. For example, if an airline flight crew employee needs to take FMLA leave for a two-hour physical therapy appointment, the employer may require the employee to remain off work the entire day and use a full day of FMLA leave.

For more information about airline flight crew employees under the FMLA, see Fact Sheet #28J.


State Laws

Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.

Protection from Retaliation

The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.


The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.

Where to Obtain Additional Information

For additional information scan the QR Code, visit the Wage and Hour Division FMLA website, and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-866-487-9243)

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.