Family and Medical Leave Act (FMLA)

Which employers and employees are covered

Employers. Private employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year are covered. Public agencies and public and private elementary and secondary schools are covered regardless of size.

Employees. Working for a covered employer is not enough. An employee is eligible only if all of these are true:

• They have worked for the employer for at least 12 months. The months do not need to be consecutive, though breaks of seven years or more generally do not count.
• They have worked at least 1,250 hours in the 12 months immediately before the leave starts. That is about 24 hours a week, and it means actual hours worked, not paid time off.
• They work at a location where the employer has 50 or more employees within 75 miles.

The 75-mile rule catches small branch offices and remote employees. For a remote worker, the worksite is the office they report to or get assignments from, not their home. The hours test matters for part-time and seasonal staff: a part-time agent averaging 22 hours a week will usually miss the 1,250-hour threshold.

What FMLA leave can be used for

Eligible employees can take up to 12 workweeks in a 12-month period for:

1. The birth of a child and bonding with the newborn within one year of birth.
2. The placement of a child with the employee for adoption, or for care arranged through a state child welfare agency, and bonding within one year.
3. Caring for a spouse, child or parent with a serious health condition.
4. The employee's own serious health condition that makes them unable to perform the essential functions of their job.
5. Qualifying exigencies arising from a spouse, child or parent's covered active duty in the military, such as attending deployment briefings or arranging childcare.

They can also take up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness (military caregiver leave).

A serious health condition generally means an illness, injury or condition that involves inpatient care, or continuing treatment by a health care provider. That includes more than three consecutive full days of incapacity plus treatment, chronic conditions like asthma, diabetes or migraines, pregnancy and prenatal care, and conditions requiring multiple treatments such as chemotherapy. A cold or the flu without complications typically does not qualify.

Job protection and benefits during leave

FMLA leave is unpaid, but it protects two things.

• Health coverage. The employer must keep the employee's group health plan coverage on the same terms as if they were working. The employee still pays their share of premiums.
• Job restoration. When leave ends, the employee must be returned to the same job or an equivalent one with the same pay, benefits, shift, schedule, location and substantially similar duties. Equivalent does not mean similar enough; it means virtually identical.

The narrow key employee exception lets an employer deny restoration to a salaried employee in the highest-paid 10% within 75 miles, if restoration would cause substantial and grievous economic injury and the employer gave proper notice.

Employers can require, or employees can choose, to use accrued paid leave at the same time, so the paid time runs concurrently with FMLA. FMLA can also run alongside state paid family leave, disability benefits and workers' compensation leave, if the employer designates it properly. Many employers also offer parental leave that runs at the same time.

Intermittent FMLA and reduced schedules

Leave does not have to be taken in one block. When medically necessary, employees can take it intermittently (in separate blocks of time) or on a reduced schedule. Bonding leave can be intermittent only if the employer agrees.

Intermittent FMLA is the hardest part to manage in contact centers, warehouses and other shift operations. An agent with certified migraines may miss one or two shifts a month without warning, and each absence hits schedule adherence and service levels. What employers can do:

• Require the employee to follow normal call-in procedures, absent unusual circumstances.
• Ask for medical certification with an estimated frequency and duration, and seek recertification when absences clearly exceed the estimate or every six months for long-running conditions.
• Count FMLA time in the smallest increment payroll uses for other leave, up to one hour.
• Temporarily transfer the employee to an equivalent role that better accommodates planned intermittent treatment.

What employers cannot do is count FMLA-protected absences under an attendance point system, deny a shift bid because of protected absences, or treat FMLA use as a factor in discipline, promotion or layoff decisions.

Notices, certification and deadlines

The FMLA runs on deadlines, and missing them is how employers lose cases they should have won.

• Employee notice. 30 days in advance when the need is foreseeable; as soon as practicable otherwise.
• Eligibility notice. Within five business days after the employee requests leave or the employer learns leave may be FMLA-qualifying. The DOL's Form WH-381 covers this along with rights and responsibilities.
• Certification. The employer may request medical certification (Forms WH-380-E and WH-380-F), and the employee generally has 15 calendar days to return it.
• Designation notice. Within five business days after the employer has enough information to decide, using Form WH-382.
• Posting. The FMLA poster must be displayed, and the policy must be in the handbook if one exists.

The employer also chooses how to measure the 12-month period: calendar year, a fixed leave year, forward from the first leave, or a rolling 12 months looking back from each leave date. Rolling backward prevents employees from stacking 24 weeks across two calendar years and is the most common choice. Keep FMLA records for at least three years, with medical information stored separately from personnel files.

Common FMLA mistakes and related laws

• Waiting for the employee to say FMLA. The employer must act once it has enough information to suspect a qualifying reason.
• Failing to designate leave as FMLA, which can mean the time does not count against the 12 weeks.
• Assigning attendance points for protected absences.
• Making the returning employee take a different shift.
• Letting a manager call the employee on leave with work requests.

FMLA is a floor. When an employee runs out of FMLA, the ADA may still require extra leave as a reasonable accommodation. Many states, including California, New York, New Jersey, Washington, Massachusetts, Colorado and Oregon, have their own family leave or paid leave laws with lower eligibility thresholds. A wider leave of absence policy should map how each one fits together. This page summarizes the federal law; state rules vary.