FMLA
FMLA is the federal law that gives eligible employees of covered employers up to 12 workweeks of unpaid, job-protected leave in a 12-month period.
- LAW
- 29 U.S.C. §§2611, 2612; 29 CFR Part 825
- THE TESTS
- 12 months, 1,250 hours, 50 employees within 75 miles
- THRESHOLD
- 50 employees in 20 or more workweeks
- WATCH FOR
- A missed notice can count as interference
Leave under the Family and Medical Leave Act is for a new child, a serious health condition, or certain military family needs. You keep the employee’s group health benefits on the same terms during the leave. When it ends, you generally restore the employee to the same or an equivalent position. The leave itself is generally unpaid, but accrued paid leave can run alongside it. State leave laws can add separate requirements.
Are you covered, and is the employee eligible?
Coverage and eligibility are separate tests: you must be a covered employer, and the employee must pass all three eligibility tests. The 12 months need not be consecutive; you generally need not count employment before a break of seven years or more. The statute sets these thresholds and the Department of Labor interprets them. Confirm current rules before you approve or deny a request.
| TEST | RULE |
|---|---|
| Private employer | 50 or more employees in 20 or more workweeks, this or last calendar year |
| Public agency or certain schools | Covered regardless of size |
| Employee tenure | At least 12 months with you |
| Employee hours | At least 1,250 hours in the 12 months before the leave starts |
| Employee worksite | At least 50 of your employees within 75 miles |
What can the leave be used for?
The 12 workweeksWorkweek (FLSA). A workweek under the Fair Labor Standards Act is a fixed, regularly recurring period of 168 consecutive hours used to compute overtime.Click to open the term cover every reason except military caregiver leave. Medical leave can be intermittent or on a reduced schedule where medically necessary; bonding leave only if you agree. Serious health condition and qualifying exigency are specific legal terms.
| REASON | LEAVE |
|---|---|
| Birth of a child and care for the newborn | Up to 12 workweeks, within 12 months of the birth |
| Placement of a child for adoption or foster care | Up to 12 workweeks, within 12 months of the placement |
| Care for a spouse, child, or parent with a serious health condition | Up to 12 workweeks |
| The employee’s own serious health condition that makes them unable to perform the job | Up to 12 workweeks |
| A qualifying exigency from a family member’s military service | Up to 12 workweeks |
| Care for a covered service member with a serious injury or illness | Up to 26 workweeks in a single 12-month period |
Which notices are due, and when?
You may not interfere with FMLA rights or retaliate for using them. A missed notice can itself count as interference, and you can be liable for the pay and benefits lost. Each of your notice deadlines allows for extenuating circumstances.
- 5 business daysto give the eligibility notice once you learn the leave may qualify.
- 15 calendar daysfor the employee to return a medical certification you request.
- 30 daysof advance notice from the employee for foreseeable birth, placement, or planned treatment.
- Penalty deadline: 5 business daysto send the designation notice once you have enough information.
Frequently asked
- 29 U.S. Code § 2611 - Definitions
- 29 U.S. Code § 2612 - Leave requirement
- 29 CFR Part 825, The Family and Medical Leave Act of 1993
- U.S. Department of Labor, Fact Sheet #28: The Family and Medical Leave Act
General information, not legal or tax advice. Apply current federal and state rules with qualified guidance.