• USERRA does not exist in a vacuum; other laws may apply.
• The FMLA and USERRA often interact.

In order to be eligible for leave under the Family and Medical Leave Act (FMLA), employees must meet several eligibility criteria. Two of these criteria affected by the Uniformed Services Employment and Reemployment Rights Act (USERRA) are:

1. The employee must have been employed by the employer for at least 12 months,
2. The employee must have worked at least 1,250 hours for that employer during the 12-month period preceding the start of the leave, and
3. The employee must work at a location with at least 50 company employees within 75 miles.

The requirement of 1,250 hours worked applies to persons employed by private employers, state and local governments, and the Postal Service.

An employee returning after military service is to be credited with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility. Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250-hour requirement.

To determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule can generally be used. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person’s eligibility, the hours the employee would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250-hour requirement is met.