Key takeaways
- The FMLA covers private employers with 50 or more employees in 20 or more workweeks of the current or prior year.
- Eligible employees get up to 12 weeks of unpaid, job-protected leave a year, or 26 weeks for military caregiver leave.
- Employees qualify after 12 months of employment and 1,250 hours worked, at a site with 50 employees within 75 miles.
- Most notice deadlines are five business days, and missing them is one of the easiest ways to lose an FMLA dispute.
- State family leave and paid leave programs often go further than the FMLA, and you have to follow both.
The Family and Medical Leave Act is a federal law that gives eligible employees of covered employers unpaid, job-protected leave for specific family and medical reasons. During that leave, the employer must keep group health coverage in place on the same terms and generally restore the employee to the same or an equivalent job.
A warehouse supervisor emails HR on a Thursday afternoon. One of his best forklift drivers has been missing a day or two every couple of weeks. The driver mentioned his wife's cancer treatment, but the supervisor is worried about attendance points and asks whether he should issue a written warning.
That email is where FMLA trouble usually starts. Nobody said the word FMLA. The employee never filled out a form. But the employer now knows enough to suspect the absences might qualify, and the law puts the next move on the employer, not the employee. A written warning at this point could become the centerpiece of an interference claim.
This guide explains how the FMLA actually works for HR teams, including the deadlines that catch employers off guard and the state laws that sit on top of it.
Which employers the FMLA covers
Private employers are covered if they employ 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year. Public agencies, including state and local governments, and public and private elementary and secondary schools are covered regardless of size.
Count all employees on the payroll, including part-time employees and those on leave. Once you are covered, you have to post the FMLA notice and include FMLA information in your handbook, if you have one, even if no individual employee is eligible yet.
Which employees are eligible
Coverage is about the employer. Eligibility is about the individual employee, and an employee must meet all three conditions:
- Worked for you for at least 12 months. The months don't have to be consecutive, though breaks of seven years or more generally don't count.
- Worked at least 1,250 hours during the 12 months immediately before the leave starts. That is about 24 hours a week. Count hours actually worked, not paid time off.
- Works at a location where you employ 50 or more employees within 75 miles.
The third test trips up companies with small branch offices. A fully remote employee's worksite is usually the office they report to or receive assignments from, which can make them eligible even if they live far away from everyone else.
Qualifying reasons for leave
Eligible employees can take FMLA leave for:
- The birth of a child and bonding with the newborn within one year of birth.
- Placement of a child for adoption or foster care, and bonding within one year of placement.
- Caring for a spouse, child, or parent with a serious health condition.
- Their own serious health condition that makes them unable to perform the essential functions of the job.
- Qualifying exigencies arising from a spouse, child, or parent's covered active duty in the military.
- Caring for a covered servicemember with a serious injury or illness, if the employee is the servicemember's spouse, child, parent, or next of kin. This military caregiver leave allows up to 26 weeks in a single 12-month period.
"Serious health condition" has a specific legal meaning. It generally involves inpatient care, or continuing treatment by a health care provider, which includes chronic conditions like asthma or diabetes and pregnancy. A routine cold usually doesn't qualify. A condition that needs multiple treatments usually does.
How much leave and how it is counted
Eligible employees get up to 12 workweeks of leave in a 12-month period. You choose how to measure that period and must apply it consistently to everyone:
| Method | How it works | Trade-off |
|---|---|---|
| Calendar year | Resets every January 1 | Simple, but an employee can take 12 weeks in December and 12 more in January |
| Fixed 12-month year | Any fixed year, such as your fiscal year | Same stacking risk as calendar year |
| Forward from first leave | 12 months starting the first day of leave | Moderate tracking effort |
| Rolling 12 months backward | Look back 12 months from each leave date | Prevents stacking, but hardest to track by hand |
If you never chose a method, the one most favorable to the employee applies. Most employers with frequent leave choose the rolling method and let software do the math.
Spouses who work for the same employer can be limited to a combined 12 weeks for birth or bonding leave and for caring for a parent. Each still has their own entitlement for their own serious health condition.
Intermittent and reduced schedule leave
Leave doesn't have to be taken all at once. When medically necessary, employees can take FMLA leave in separate blocks of time or on a reduced schedule. Think weekly dialysis appointments, migraines that flare unpredictably, or chemotherapy every other Friday. For bonding leave, intermittent leave requires your agreement.
Track intermittent leave in the smallest increment your payroll system uses for other absences, as long as it is no more than one hour. And don't count FMLA-protected absences against attendance points. That single mistake drives a large share of FMLA lawsuits.
For foreseeable intermittent leave for planned treatment, you can ask the employee to schedule it so it disrupts operations as little as possible, and in some cases you can temporarily transfer them to an equivalent position that better accommodates the schedule.
Required notices and deadlines
The FMLA puts most of the paperwork burden on the employer, with short deadlines. Here is the sequence the Department of Labor expects.
- General notice. Post the FMLA poster where employees can see it, or electronically for remote staff, and include FMLA information in your handbook or give it to new hires.
- Eligibility notice. Within five business days after an employee requests leave, or after you learn the leave may qualify, tell the employee whether they are eligible. If not, explain why.
- Rights and responsibilities notice. At the same time, explain the employee's obligations, such as providing certification, using paid leave, and paying their share of premiums.
- Certification. If you require medical certification, give the employee at least 15 calendar days to return it. The DOL publishes optional forms for this.
- Designation notice. Within five business days after you have enough information, tell the employee whether the leave is designated as FMLA leave and how much will count against their entitlement.
Notice the trigger in step two: "after you learn the leave may qualify." Employees don't have to say "FMLA." In the forklift driver example, the supervisor's knowledge of the wife's cancer treatment arguably started the clock.
Health coverage, paid leave, and pay during FMLA
FMLA leave is unpaid under federal law. Employees can choose, or you can require them, to use accrued paid leave at the same time, which is called substitution, as long as they meet the normal conditions of your paid leave policy. Short-term disability payments and state paid leave benefits often run alongside FMLA leave too.
You must keep group health coverage on the same terms as if the employee were working. If the employee normally pays part of the premium, they still owe it, and you need a process for collecting it during unpaid leave.
Job restoration and protection from retaliation
When FMLA leave ends, the employee is generally entitled to return to the same job or an equivalent one with equivalent pay, benefits, and other terms. There is a narrow exception for certain salaried key employees among the highest-paid 10 percent of employees within 75 miles, and it comes with its own notice requirements.
The law prohibits interfering with FMLA rights and retaliating against anyone who uses them. Examples of retaliation include counting FMLA absences toward discipline, using leave as a negative factor in promotion decisions, or ending employment shortly after a return for vague reasons. Document legitimate performance issues before leave begins and treat them consistently.
State family and medical leave laws
The FMLA is a floor. Many states go further, and you have to comply with whichever law gives the employee more protection.
California's CFRA applies to employers with five or more employees and doesn't require the 50-employees-within-75-miles test. A growing list of states, including California, New York, New Jersey, Washington, Massachusetts, Colorado, and Oregon, run paid family and medical leave insurance programs funded through payroll contributions. These pay wage replacement benefits, and some of them provide job protection that covers employees the FMLA would not.
Leave can also overlap with the Americans with Disabilities Act. When FMLA leave runs out, an employee with a disability may still be entitled to additional leave as a reasonable accommodation, and the ADA's interactive process applies. Workers' compensation can overlap too.
Running leave well in practice
A few habits prevent most FMLA problems. Train supervisors to spot possible FMLA situations and route them to HR the same day. Keep medical information confidential and separate from personnel files. Use a calendar or software to track deadlines, because five business days goes by quickly. Keep FMLA records for at least three years, as the regulations require.
Once you have more than a few leaves a year, especially intermittent ones or employees in states with paid leave programs, leave management software or a third-party administrator pays for itself. Our leave and FMLA management buyer guide explains what to look for.
FMLA compliance checklist
Work through this list with your team. The printable PDF version has space to tick each item off.
- Confirm whether you meet the 50-employee coverage test
- Post the FMLA notice, including electronically for remote staff
- Include FMLA information in the handbook or new hire materials
- Choose and document a 12-month leave year method
- Train supervisors to send possible FMLA situations to HR the same day
- Send the eligibility notice within five business days
- Send the rights and responsibilities notice with it
- Give at least 15 calendar days to return certification
- Send the designation notice within five business days of having enough information
- Track intermittent leave in increments of one hour or less
- Exclude FMLA absences from attendance points and discipline
- Continue group health coverage and collect employee premiums
- Check state family leave and paid leave laws for each work state
- Consider ADA accommodation when FMLA leave ends
- Keep FMLA records for at least three years
Where to go from here
Wherever you are in the process, there is a next step that fits.
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Email templates for this topic
Ready-to-edit emails with subject lines, compliance notes, and a free PDF.
- Leave request acknowledgment email templateAcknowledge a request for medical or family leave and explain the next steps and notices.
- Leave approval email templateConfirm approved leave with dates, pay, benefits, and how to stay in touch while away.
- Return from leave email templateWelcome an employee back from extended leave with a plan for the first days and any support they need.
- Attendance warning email templateAddress tardiness or absences with facts and expectations, while excluding protected leave.
Frequently asked questions
Is FMLA leave paid?
How many employees do you need for FMLA to apply?
Does an employee have to ask for FMLA by name?
Can FMLA leave be taken a few hours at a time?
Can I fire an employee on FMLA leave?
Sources
We checked the facts in this guide against these primary sources. Laws and thresholds change, so confirm current rules before you act.
Written by the HRTally Research Team
Our guides are written and reviewed by people with hands-on US HR, payroll, and HR technology experience. Legal and tax facts are checked against primary sources, such as the Department of Labor, IRS, EEOC, and USCIS, and linked at the end of each guide. Vendors never review or pay for our editorial content.