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COMPLIANCE

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.

Updated 4 min read4 primary sources

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.

TESTRULE
Private employer50 or more employees in 20 or more workweeks, this or last calendar year
Public agency or certain schoolsCovered regardless of size
Employee tenureAt least 12 months with you
Employee hoursAt least 1,250 hours in the 12 months before the leave starts
Employee worksiteAt 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.

REASONLEAVE
Birth of a child and care for the newbornUp to 12 workweeks, within 12 months of the birth
Placement of a child for adoption or foster careUp to 12 workweeks, within 12 months of the placement
Care for a spouse, child, or parent with a serious health conditionUp to 12 workweeks
The employee’s own serious health condition that makes them unable to perform the jobUp to 12 workweeks
A qualifying exigency from a family member’s military serviceUp to 12 workweeks
Care for a covered service member with a serious injury or illnessUp 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

No, not under FMLA itself, which generally guarantees only unpaid, job-protected leave. An employee may choose to substitute accrued paid leave, or you may require it, except during paid disability or workers’ compensation leave. Either way, the substitution follows your normal paid leave policy. A state paid family or medical leave program may also pay benefits, depending on the state.

SOURCES
  1. 29 U.S. Code § 2611 - Definitions
  2. 29 U.S. Code § 2612 - Leave requirement
  3. 29 CFR Part 825, The Family and Medical Leave Act of 1993
  4. 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.

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