Many organizations look to the Family and Medical Leave Act (FMLA) to provide employees with long-term, job-protected leaves of absence. The FMLA grants employees 12 weeks of job protection and unpaid leave for covered family or medical conditions. To be eligible, they must work at an employer with 50 or more employees located with 75 miles of their worksite. But what happens if an employee is not eligible for FMLA but still needs time away from work? How can you support them?
Why would an employee not be eligible for FMLA?
According to the US Department of Labor, employees are entitled to 12 weeks of FMLA leave for the following reasons:
- The birth of a child, and to care for the newborn child within one year of birth
- To care for a newly-placed adoptive or foster child (or children), within one year of placement
- To care for the employee’s family member including spouse, child, or parent who has a serious health condition
- A serious health condition that makes the employee unable to perform the essential functions of their job
- Any qualifying exigency due to the employee being qualified for military family leave. This means the employee has a spouse, son, daughter, or parent that is a covered military member on “covered active duty”
If an employee needs to go out on leave for any of the reasons mentioned above, they may apply for FMLA. However, to qualify for FMLA the employee must:
- Have worked at the organization for at least 12 months
- Worked at least 1,250 hours during the previous year
- Currently work at a location where there are at least 50 employees with a 75-mile radius
These requirements must be met for an employee to qualify for FMLA. If either the employee or employer fall short, then FMLA is not an option. When an employee isn’t qualified for FMLA, employers are not obligated to grant leave. However, when you support employees during their time of need, you provide a better experience for that employee, and make them more likely to return to work.
When FMLA isn’t an option, you should reach out to the employee to better understand of their situation. Then, you can work together to find out their needs are, and what options they might have. Below, we’ll look at what those alternative options could be.
State leave laws can provide alternative leave options
If an employee is not eligible for FMLA leave, the first thing you can do is look for state leave laws that this employee could be eligible for. According to AbsenceSoft’s 2026 State of Leave and Accommodations report, 53% of HR leaders saw an increase in leave requests over the past year. For multi-state employers, that volume is even harder to manage without a clear picture of what each state requires.
Each state has different eligibility requirements and benefits. The table below shows a sample of states with notable differences from federal FMLA:
| State | Employer Size Threshold | Paid or Unpaid | Key Differences |
| California | 5+ employees (CFRA) | Paid (SDI/PFL) | Broader family definitions, domestic partners covered |
| Connecticut | 1+ employee | Paid | One of the lowest employer thresholds in the country |
| New Jersey | 30+ employees | Paid | Covers bonding, family care, and military exigency |
| Oregon | 25+ employees | Paid | Covers bereavement, safe leave, and pregnancy-related conditions |
| Washington | 50+ employees | Paid | Covers medical and family leave separately |
| New York | All employers | Paid | Covers family leave with a separate short-term disability program |
Offering leave under the Americans with Disabilities Act (ADA)
In some cases, the ADA can be used to provide a leave of absence if FMLA leave isn’t an option. To offer this option, you need to make sure that the employee is eligible for ADA.
An employee is eligible for a workplace accommodation under the ADA if they have a qualifying disability. A qualifying disability is one that substantially limits one or more major life activities.
So, if an employee has a qualifying disability that is impacting their daily life, they could be eligible for a leave of absence. The leave must also be a reasonable accommodation, and not create an undue hardship for their employer. Typically, unpaid leave for a specified time period is considered reasonable. Offering a defined paid leave can also be considered a reasonable accommodation, depending on the employer.
Because the ADA is not as clearly defined as FMLA, it’s important to have a thorough interactive process with the employee. This way, both HR and the employee can effectively work together to find an accommodation that works for everyone. For a detailed look at how the FMLA and ADA interact, including what to do when both laws apply at the same time, see our article on leave under the FMLA vs. ADA. If you would like to learn more about ADA and the interactive process specifically, check out our Modern ADA and PWFA Management Toolkit.
How the Pregnant Workers Fairness Act can support your employees
If you are trying to help a pregnant worker who is not eligible for FMLA, the Pregnant Workers Fairness Act (PWFA) may be able to support them. The PWFA requires employers with at least 15 employees to provide reasonable accommodations to employees with limitations related to pregnancy, the birth of a child, or related medical conditions.
The PWFA is different from the ADA because although some pregnancy-related conditions can qualify as a disability under the ADA, they must cause a physical or mental impairment that substantially limits one or more major life activities. The PWFA goes beyond the ADA to ensure that pregnancy-related medical restrictions no longer must rise to the level of disability to warrant accommodation. This gives workers access to support earlier and more easily, regardless of tenure or hours worked.
Accommodations can come in many forms for pregnant workers, some of which include:
- Flexible work schedules
- Lighter workload
- Intermittent or extended leaves of absence
- Additional breaks
- More supportive seating
Company policies that provide leave as a benefit
A company’s own leave policies might also offer leave for employees who don’t qualify for FMLA. Your HR team can see if the employee is eligible for a company policy that offers either paid or unpaid leave.
According to AbsenceSoft’s 2026 State of Leave and Accommodations report, supporting employee well-being and improving retention are the top two internal goals organizations have for their leave programs. Having policies that offer more generous leave benefits than FMLA is one of the most direct ways to meet both goals.
The most important thing for your HR team to keep in mind when an employee is not eligible for FMLA is to take the time to explore all of their options. If someone needs to go on leave to help their injured family member, or because they are injured themselves, it’s best to find a solution that can support them through a challenging time.
Having a leave management system like AbsenceSoft in place can make this process much easier. You will be able to calculate exactly what an employee is eligible at the click of a button. Our platforms allows you to personalize the interactive process and guides you step by step, so you make sure you are checking all the boxes. If you are interested in learning more about how AbsenceSoft can help your team, our leave experts would be happy to chat.
FAQ on FMLA Eligibility
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To qualify for FMLA, an employee must work for an employer with at least 50 employees within a 75-mile radius, have worked at the organization for at least 12 months, and have logged at least 1,250 hours in the past 12 months. All three criteria must be met. AbsenceSoft calculates eligibility automatically, so your team isn’t manually tracking hours and tenure every time a request comes in.
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Part-time employees can qualify for FMLA, but only if they have worked at least 1,250 hours in the past 12 months. For many part-time workers, that threshold is difficult to meet. If FMLA doesn’t apply, state leave laws or ADA accommodations may still be an option. AbsenceSoft can instantly surface which state policies a part-time employee may be eligible for, so you aren’t left researching manually.
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If an employee doesn’t meet FMLA eligibility requirements, HR should evaluate whether any state leave laws apply, whether the ADA or PWFA requires an accommodation, and what internal company leave policies may be available. AbsenceSoft’s ACE Policy Library includes more than 200 federal and state leave laws, and allows you to manage unlimited custom company policies in the same system, so every option is visible in one place.
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No. An employee must have worked for the organization for at least 12 months before they are eligible for FMLA. New hires who need leave may be covered by state laws with shorter tenure requirements, or by company-specific policies. AbsenceSoft tracks tenure and eligibility automatically, so you always know where a new hire stands before a conversation gets complicated.
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Remote employees can qualify for FMLA, but there is an important nuance. The 50/75 rule applies to the worksite an employee is assigned to, not their home. If a remote employee is tied to a small office or has no official worksite, they may not meet the employer coverage threshold even if the company is large. For a full breakdown, see our guide to FMLA eligibility and remote employees. AbsenceSoft helps HR teams manage leave across distributed workforces, keeping eligibility calculations accurate regardless of where employees are located.
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FMLA provides up to 12 weeks of job-protected unpaid leave for specific qualifying reasons, with strict eligibility requirements. ADA leave is a form of reasonable accommodation with no set time limit, and applies when an employee has a disability that substantially limits a major life activity. The two often overlap, but either can apply on its own. AbsenceSoft manages both leave and accommodations in a single platform, so when a case involves both laws, nothing falls through the cracks. See our full article on FMLA vs. ADA leave for a detailed comparison.