An employee tells you their mother had a stroke, or they need surgery, or their baby is due in March. What happens next is governed in large part by the Family and Medical Leave Act (FMLA), and the clock on your obligations often starts the moment you have enough information to suspect a leave might qualify, even if the employee never says "FMLA."
This guide covers the federal basics: which employers are covered, which employees are eligible, what the leave includes, the notices you must give and how state family leave programs complicate the picture.
Is your business covered?
Private employers are covered by the FMLA 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 and public and private elementary and secondary schools are covered regardless of size.
If you are under 50 employees, do not stop reading. Many states have their own family or medical leave laws with lower thresholds, and some state paid leave programs cover employers of every size.
Is the employee eligible?
A covered employer's employee is eligible if they meet all of these:
- Have worked for the employer for at least 12 months (the months need not be consecutive, with some limits on breaks in service).
- Have worked at least 1,250 hours in the 12 months before the leave starts.
- Work at a location where the employer has 50 or more employees within 75 miles.
The 75-mile rule matters for businesses with scattered or remote staff. For remote employees, the worksite is generally the office they report to or receive assignments from, not their home.
What leave is available
Eligible employees may take up to 12 workweeks of unpaid, job-protected leave in a 12-month period 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.
- The employee's 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 military duty.
Military caregiver leave allows up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.
Leave can be taken in a block, intermittently or on a reduced schedule when medically necessary. During leave you must maintain group health coverage on the same terms as if the employee were working, and on return the employee is generally entitled to the same or an equivalent position.
Choosing your 12-month period
You can measure the 12-month period as a calendar year, a fixed year (such as a fiscal year), a 12-month period measured forward from the first day of leave, or a rolling 12-month period measured backward. The rolling backward method is popular because it prevents employees from stacking leave across two calendar years. Whatever you choose, apply it consistently and state it in your policy.
The notices you must give
| Notice | When | Purpose |
|---|---|---|
| General notice (poster) | Always, for covered employers; also in the handbook or given at hire if you have one | Explains FMLA rights; must be posted where employees and applicants can see it, and can be posted electronically if all employees have access |
| Eligibility notice | Within 5 business days of the employee requesting leave or of learning the leave may qualify | Tells the employee whether they are eligible and, if not, why |
| Rights and responsibilities notice | With the eligibility notice | Explains certification requirements, benefit payments, use of paid leave and job restoration |
| Designation notice | Within 5 business days of having enough information to determine whether the leave qualifies | Confirms whether the leave is designated as FMLA and how much will be counted |
The Department of Labor publishes optional model forms for each notice and for medical certification. Using them is the easiest way to make sure you include the required content.
Medical certification
You may require certification from a health care provider to support leave for a serious health condition. Give the employee at least 15 calendar days to return it. If the certification is incomplete or insufficient, tell the employee in writing what is missing and give them at least seven calendar days to cure it. Keep medical information in a separate, confidential file, not the personnel file.
Paid leave and FMLA
FMLA leave is unpaid, but you can require, or the employee can elect, to use accrued paid leave at the same time, which makes the two run concurrently. Your policy should state which applies. If an employee is receiving disability or workers' compensation benefits during FMLA leave, the substitution rules work differently, so check before requiring PTO use.
State family and medical leave programs
A growing number of states and the District of Columbia run paid family and medical leave programs funded by payroll contributions, and others have their own unpaid job-protected leave laws. These programs often:
- Cover smaller employers than the FMLA.
- Have different eligibility rules and leave lengths.
- Cover a broader list of family members.
- Require employer payroll deductions or contributions and separate notices.
State leave may or may not run at the same time as FMLA leave. Because the details vary so much, look up each state where you have employees in our state HR law guides.
Employer FMLA checklist
- Confirm whether you are a covered employer, and recheck each year.
- Post the FMLA notice and include FMLA information in your handbook.
- Choose and document your 12-month leave year method.
- Train managers to escalate any mention of a serious health condition, pregnancy, family caregiving or military deployment to HR.
- Send eligibility and rights notices within 5 business days.
- Request medical certification consistently and track deadlines.
- Send the designation notice within 5 business days of having enough information.
- Maintain health benefits and track leave usage, including intermittent hours.
- Restore the employee to the same or an equivalent job.
- Check state leave laws and the ADA, which may require additional leave as a reasonable accommodation after FMLA runs out.
Common FMLA mistakes
- Waiting for the employee to say "FMLA" before acting.
- Failing to designate leave, then trying to count it retroactively.
- Counting FMLA absences against the employee under an attendance policy.
- Disciplining or terminating shortly after leave without strong documentation of unrelated reasons.
- Treating the end of FMLA as an automatic termination date without considering ADA accommodation.
Key takeaways
- FMLA applies to private employers with 50 or more employees; eligibility requires 12 months, 1,250 hours and 50 employees within 75 miles.
- Eligible employees get up to 12 workweeks of job-protected leave, or 26 for military caregiver leave.
- Your notice obligations start when you learn leave may qualify, and most have a 5 business day deadline.
- State leave programs often cover smaller employers and run alongside the FMLA.
Get help with a specific leave request
Have a leave situation in front of you? Describe it in AskHrAI's AI HR chat to work through eligibility and notices, and grab model HR forms from our free forms library.
This article is general information, not legal advice. Employment laws change and vary by state and city — confirm details with your state labor department or an employment attorney.