What is the FMLA?
The Family and Medical Leave Act is a Federal law that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons.
How much leave do eligible employees get?
Up to 12 work weeks of leave in a 12-month period for the following reasons:
- The birth, adoption, or foster care placement of a child
- To care for a spouse, son, daughter, or parent who has a serious health condition, including incapacity due to pregnancy or prenatal medical care
- For a serious health condition that makes the employee unable to perform essential job functions, including incapacity due to pregnancy
- For qualifying situations in which a military spouse, son, daughter, or parent is on covered active duty or called to covered active duty status
An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member may also take up to 26 work weeks of leave during a 12-month period to care for the servicemember's serious injury or illness. However:
- Employees are limited to a combined total of 26 work weeks of FMLA leave in a 12-month period
What are the employer's obligations?
- Maintain employees' health benefits during leave
- Restore employees to their same or an equivalent job after leave
- Provide notice of FMLA rights
- Maintain certain records
The law also gives employers the right to require certification of the need for FMLA leave in some circumstances and protects employees from retaliation for exercising their FMLA rights. For more information, visit dol.gov/whd/fmla.
Which companies have to comply with FMLA?
A private-sector employer is covered by the FMLA if:
- It has 50 or more employees
- They worked at least 20 weeks in the current or preceding calendar year
How are work weeks counted?
If an employee worked any day of a calendar week, that counts as a work week. Any 20 work weeks with 50 or more employees over the past two years will put you over the FMLA threshold, even if those weeks weren't consecutive.
Which employees must be counted?
- Any employee who works in the US, or its territories or possessions
- Any employee whose name appears on payroll records
- Any employee on paid or unpaid leave as long as there is a reasonable expectation to return to active employment
- Employees of foreign firms operating in the US
- Part-time, temporary, seasonal, and full-time employees
Which employees don't have to be counted?
- Employees with whom the employment relationship has endedUnpaid volunteers not on the payroll or meet the definition of an employee
- Employees of US firms stationed at worksites outside the US, its territories, or possessions
- Employees of foreign firms working outside the US
- Where two or more businesses exercise some control over an employee's work, such as with a temporary employment agency, they may be joint employers under the FMLA. Both companies must count joint employees for FMLA purposes.
A corporation is a single employer under the FMLA; all employees at all locations are counted for FMLA. Separate businesses may be considered parts of a single entity if they are integrated via common management, interrelated operations, centralized control of labor, and common ownership or financial control.
If a company takes over the business operations of a covered employer, it may be considered a covered employer.
NOTE: Requirements for Public agency, Federal (government), School employers and Airlines are not included in this summary.
General notice requirements for covered employers
- Every covered employer is required to post a notice at all worksites – specifically an FMLA poster – which explains the Act's benefits and eligibility provisions and tells employees how to file complaints of violations.
- Companies can download an FMLA poster for free from the US Department of Labor website.
- If a significant portion of an employer's employees does not read and write English, the employer must provide the General Notice in a language they can read and write.
- When providing FMLA notices to sensory-impaired individuals, employers must also comply with all applicable requirements under federal and state law.
- General FMLA notice and eligibility rules should be in employee handbooks or other written guidance about benefits; otherwise, employers must distribute a copy of the notice to each new hire.
- Employers that willfully violate the posting requirement may be subject to penalties.
Notice requirements for employees:
- Employees must provide written or oral notice to their employer of the need for FMLA leave.
- Employers may require compliance with standard policies for requesting leave unless unusual circumstances prevent the employee from doing so. Employers can also choose to waive their own internal rules about leave requests.
- The employee's initial request need not mention FMLA but must provide enough information for the employer to know that the leave may be covered by the FMLA.
- If the leave is foreseeable, the employee must also indicate when and how much leave is needed.
- Employers may ask additional questions to determine if the leave is FMLA-qualified.
Timing of an employee's notice for a foreseeable leave:
- An employee must generally give at least 30 days advance notice, if possible.
- If the situation has changed or timing is inexact (such as the birth date of a child), the employee must provide notice as soon as practical.
- If FMLA leave is for a qualifying exigency of a military family member, the employee must give notice of the need for such leave as soon as possible and practical, regardless of how far in advance the leave is needed.
- For planned medical treatment, the employee should try to schedule the treatment at a time that minimizes the disruption to company operations.
Timing of an employee's notice for leave that is unforeseeable:
- The employee must provide notice as soon as possible and practical.
- Whether the employee's notice of unforeseeable leave is considered timely will depend upon the facts of the particular case.
Which employees are eligible?
An eligible employee meets all of the following criteria:
- Works for a covered employer.
- Has worked for the employer for at least 12 months as of the FMLA leave start date. The 12 months need not be consecutive or full-time.
- Has at least 1,250 hours of service for the employer during the 12 months immediately before the FMLA leave start date. This equals about 24 hours per week for a year (different hours of service requirement applies to airline flight crew employees).
- Works at a location where the employer employs at least 50 employees within 75 miles on the date notice is given. All employees on payroll are counted.
Employers must respond within 5 days of the request with an Eligibility Notice
- The Eligibility Notice can be written or oral and must inform the employee whether they are eligible for FMLA leave.
- If not eligible for FMLA leave, the employer must state at least one reason why.
- If a significant portion of the employer's workforce is not English-literate, the Eligibility Notice must be in a language in which employees are literate.
Employers must also provide a Rights and Responsibilities Notice within 5 days
The Rights and Responsibilities Notice must be in writing in a language employees are literate in and must include all of the following information:
- A statement of the period of leave that may be designated and counted against the employee's FMLA leave entitlement
- The 12-month period used to track FMLA leave usage
- Whether the employee will be required to provide certification of the need for leave
- The employee's right to use paid leave, whether the employer will require the substitution of paid leave, any conditions related to the substitution, and the employee's right to take unpaid FMLA leave if the employee does not meet the conditions for paid leave
- The employee's status as a "key employee" and potential restoration consequences, if applicable:
- A "key employee" is a salaried FMLA-eligible employee who is among the highest-paid 10% of all employees, both eligible and ineligible, within 75 miles of the worksite.
- The employee's right to job restoration and maintenance of benefits
- Whether the employee will be required to make premium payments to maintain health benefits and any arrangements for doing so, the consequences of failing to make payments on a timely basis, and the employee's potential liability for premium payments made by the employer if the employee fails to return to work
- The consequences of failing to meet his or her obligations
According to the Guide, eligible employees may take up to 12 work weeks of FMLA leave in a 12-month period for the following qualifying reasons:
- The birth of a child and to bond with the newborn child within one year of birth
- The placement of a child for adoption or foster care and to bond with the newly-placed child within one year of placement
- A serious health condition that makes the employee unable to perform the functions of his or her job, including incapacity due to pregnancy and for prenatal medical care
- To care for the employee's spouse, son, daughter, or parent who has a serious health condition, including incapacity due to pregnancy, and for prenatal medical care
- Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status
In addition, eligible employees may take up to 26 work weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (referred to as military caregiver leave). An eligible employee is limited to a combined total of 26 work weeks of leave for any FMLA-qualifying reasons during the single 12-month period.
What counts as a "Serious Health Condition" and "Incapacity"?
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA does not apply to routine medical examinations.
Incapacity means inability to work, including being unable to perform any of the essential functions of the employee's position or inability to attend school or perform other regular daily activities due to a serious health condition, or recovery from the serious health condition.
An employer can require certification (i.e., a form or document) that supports the employee's need for FMLA leave, including the likely periods of absences, verification of a serious health condition, or facts supporting a military family leave. The employee has the responsibility to provide the certification if requested. If the employee does not provide the certification, the employer may deny the request for FMLA leave.
Source: The Employer's Guide to the Family and Medical Leave Act, Wage and Hour Division, United States Department of Labor
An employer may provide employees with these forms from the Department of Labor for obtaining certification.
- WH-380-E, Certification of Health Care Provider for Employee's Serious Health Condition
- WH-380-F, Certification of Health Care Provider for Family Member's Serious Health Condition
- WH-384, Certification of Qualifying Exigency for Military Family Leave
- WH-385, Certification for Serious Injury or Illness of a Covered Servicemember – for Military Family Leave
- WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.
Eligible employees are entitled to two types of military family leave under FMLA:
- Any "qualifying exigency" (demand or need) arising from the foreign deployment of the employee's spouse, son, daughter, or parent with the Armed Forces
- To care 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 is called "military caregiver leave."
For the employee to take qualifying exigency leave, the military member must be on covered active duty, under a call to covered active duty status, or notified of an impending call or order to covered active duty.
Qualifying Exigency Categories
- Issues arising from the military member's short-notice deployment (i.e., deployment within seven or fewer days of notice).
- To make or update financial and legal arrangements to address a military member's absence.
- To attend counseling for the employee, the military member, or a child of the military member when the need for that counseling arises from the covered active duty or call to covered active duty status of the military member and the counseling is provided by someone other than a health care provider.
- To attend military events and related activities, including official military ceremonies and programs or informational briefings related to the military member's covered active duty sponsored or promoted by the military or military service organizations.
- To spend up to 15 calendar days with a military member who is on rest and recuperation leave.
- Certain childcare and related activities for the military member's child while the military member is on covered active duty. The employee does not need to be related to the military member's child to take qualifying exigency leave for this purpose. But, (1) the military member must be the parent, spouse, or child of the employee taking leave, and (2) the child for whom the employee is arranging for or providing childcare must be the child of the military member.
- To attend post-deployment activities within 90 days of the end of the military member's covered active duty or to attend to issues arising from the death of a military member while on covered active duty.
- Certain parental care activities for the military member's parent who is incapable of self-care. The employee does not need to be related to the military member's parent to take qualifying exigency leave for this purpose. But, (1) the military member must be the parent, spouse, or child of the employee taking FMLA leave; and (2) the parent receiving assistance must be the parent of the military member.
- Any other event that the employee and employer agree is a qualifying exigency. Both the employee and employer must agree to the timing and duration of the leave.
For Military Caregiver Leave, a covered servicemember is either a current servicemember or a veteran:
- A qualifying serious injury or illness for a current servicemember is one that was incurred on active duty and rendered the servicemember medically unfit to perform their duties.
- A qualifying serious injury or illness for a veteran is one that was incurred when the veteran was on active duty. The injury or illness may manifest itself during active duty or develop after the servicemember becomes a veteran.
Employers need to provide employees with a Designation Notice
Once an employee provides any required certification, employers have five business days to approve or deny FMLA leave.
If the employer does not have enough information to determine whether the leave qualifies for FMLA protection, the employer may ask for more information about the reason for leave. If the submitted certification is incomplete or insufficient, the employer is required to state in writing what additional information is needed.
The Department of Labor has a downloadable form that can help communicate approval or denial of an FMLA request: Designation Notice (Form WH-382).
What are the contents of the Designation Notice?
In addition to designating leave as FMLA qualifying, the written Designation Notice must include all of the following:
- The amount of leave that will count against the employee's FMLA leave entitlement, if known. (If the exact amount of leave is not known at the time of the designation, the employer must provide this information in writing at the employee's request, but no more often than once in 30 days, and only if leave was taken.)
- Whether the employee is required to substitute paid leave for unpaid FMLA leave
- Whether the employee will be required to submit a fitness-for-duty certification to return to work
Employers can require Fitness-for-Duty Certification
When an employee takes leave for a serious health condition, an employer can require certification from the employee's health care provider stating that the employee is able to resume work. The requirement should be part of a policy that is uniformly applied to all similarly situated employees.
- This certification can be requested only for the health condition that caused the employee's need for FMLA leave. In cases of intermittent and reduced schedule FMLA leave, there are limits to how often an employer may request certification.
- If the employer wants certification to address the employee's ability to perform essential functions of their position, the employer must list these functions in the Designation Notice.
- The employee is responsible for the cost of the fitness-for-duty certification.
- The employer may delay the restoration of the employee until they submit the required certification.
- The employer may contact the employee's health care provider to authenticate or clarify the fitness-for-duty certification, but this process may not delay the employee's return to work.
Employers must maintain group health plan benefits, as long as employees pay their share
- During any FMLA leave, an employer must maintain the employee's coverage under any group health plan as if the employee had been continuously employed during the entire leave period.
- The employee must continue to pay the same share of group health plan premiums paid prior to leave.
- If an employee's premium payment is more than 30 days late, an employer may drop the employee's health insurance, unless the employer has a policy of allowing a longer grace period.
- Before dropping coverage for late premium payment, the employer must provide written notice to the employee that the payment has not been received and that his or her insurance coverage will end at a specified date at least 15 days after the date of the written notice unless payment is received. This notice must be mailed to the employee at least 15 days before coverage is to cease.
- Even when an employer ceases health insurance coverage due to an employee's failure to pay his or her premium payments, all other obligations under the FMLA continue.
Employers must restore employees' jobs after FMLA leave, with certain limitations
- When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an "equivalent job."
- The employee is not guaranteed the actual job he or she held prior to the leave. An "equivalent job" means a virtually identical job to the original position in terms of pay, benefits, and other employment terms and conditions (including shift and location).
- An employee on FMLA leave is not protected from actions that would have affected him or her if the employee was not on FMLA leave, for example, if their shift has been eliminated.
Employers must keep specific records relating to FMLA leave
FMLA-covered employers are required to make, keep, and preserve certain records. However, those records can be in any form the employer chooses, as long as all of the following required information is included:
- Basic payroll and identifying employee data, including:
- Name, address, and occupation
- Rate or basis of pay and terms of compensation
- Daily and weekly hours worked each pay period
- Additions to and deductions from wages
- Total compensation paid
- Dates FMLA leave is taken (which must be designated in the records as FMLA leave)
- Hours of FMLA leave used if leave is taken in increments of less than a day
- Copies of FMLA notices — both those provided by an employee to the employer (including written leave requests) and from the employer to its employees concerning FMLA.
- Any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave
- Premium payments for employee benefits
- Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements regarding a disagreement on the designation of the employee's FMLA leave request.
Confidentiality: Records and documents relating to FMLA medical certifications of employees or their family members must be treated as confidential medical records maintained in separate files from the usual personnel files.
The FMLA may apply alongside or in addition to other laws, regulations, and policies, including:
- Americans with Disabilities Act (ADA)
- Pregnancy Discrimination Act (PDA)
- Consolidated Omnibus Budget Reconciliation Act (COBRA)
- Uniformed Services Employment and Reemployment Rights Act (USERRA)
- Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule
- Workers' Compensation
- State Family and Medical Leave Laws
- Employer's Policies
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 Department's regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. Examples include:
- Refusing to authorize FMLA leave
- Discouraging an employee from using such leave
Interference also includes manipulation to avoid responsibilities under the FMLA. Examples include:
- Transferring employees from one worksite to another to keep a worksite below the 50-employee threshold for employee eligibility under the Act;
- Changing the essential functions of the job to preclude the taking of leave; or
- Manipulating an employee's work hours to avoid employee eligibility under the FMLA.
Employers are prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempting to exercise any FMLA right. Examples include:
- Using the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions;
- Counting FMLA leave under "no-fault" attendance policies; or
- Failing to provide benefits to an employee on unpaid FMLA leave if the employer provides those benefits to employees who use other types of unpaid leave.
Employers are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee because that person has:
- Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
- Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
- Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.
For more detailed information about FMLA and any topic covered in this summary, please consult The Employer's Guide to The Family and Medical Leave Act from the US Department of Labor.
What is the employer's responsibility for FMLA?
If an employer is covered under the FMLA, that employer must generally allow eligible workers to take up to 12 workweeks of unpaid leave a year with all health benefits maintained; and at the end of FMLA leave, they must return to the same position or an equivalent job.
Do employers with less than 50 employees have to offer FMLA?
No. The FMLA covers companies with 50 or more employees who have worked at least 20 weeks in the current or preceding calendar year.
What questions can an employer ask about FMLA?
Consistent with other sound leave management protocols, an employer can generally ask an employee to provide reasonable information supporting his or her request for FMLA leave.
Who determines FMLA eligibility?
FMLA requirements and eligibility rules are detailed extensively in The Employer's Guide to The Family and Medical Leave Act from the US Department of Labor.