FMLA (Family and Medical Leave Act): What It Means for Employers

What it means in practice

The Department of Labor's Wage and Hour Division administers and enforces the FMLA for most employees, and the law turns on three questions: is the employer covered, is the employee eligible, and is the reason qualifying. Leave is unpaid by default, so it is separate from paid time off (PTO), although the two can run together as described below. The Fair Labor Standards Act is a separate statute, though its hours-worked rules are used here.

Which employers are covered. A covered employer is a person engaged in commerce or in an industry or activity affecting commerce who employs 50 or more employees for each working day during each of 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 the number of employees (29 CFR 825.104). Separate entities can be treated as a single employer under an integrated employer test, and then their employees are counted together (29 CFR 825.104(c)).

Which employees are eligible. An eligible employee must (1) have been employed by the employer for at least 12 months, (2) have worked at least 1,250 hours of service in the 12 months immediately before the leave starts, and (3) work at a worksite with 50 or more of the employer's employees within 75 miles (29 CFR 825.110). The 12 months need not be consecutive. The 1,250 hours follow the FLSA rules on hours worked; 1,250 hours over 52 weeks averages about 24 hours a week (our arithmetic). The 12-month and hours tests are applied as of the date leave starts; the 50-employee test is checked when the employee gives notice and is not undone if headcount later drops (29 CFR 825.110(d) and (e)).

Qualifying reasons. Covered employers must grant leave to eligible employees for six reasons (29 CFR 825.112): the birth of a child and care of the newborn; placement of a child for adoption or foster care; care of a spouse, child or parent with a serious health condition; the employee's own serious health condition that makes them unable to perform the job; a qualifying exigency tied to a family member's covered active duty; and care of a covered servicemember with a serious injury or illness. Bonding leave for a birth or placement must be taken within the 12-month period beginning on the date of birth or placement (29 CFR 825.120).

Who counts as family. For the FMLA, spouse means a husband or wife as recognized under state law, parent includes biological, adoptive, step and foster parents but not parents-in-law, and son or daughter means a child who is under 18, or 18 or older and incapable of self-care because of a disability (29 CFR 825.122).

What is a serious health condition. It is an illness, injury, impairment or physical or mental condition that involves inpatient care (an overnight stay in a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider (29 CFR 825.113 and 825.114). Continuing treatment includes incapacity of more than three consecutive full calendar days plus either two treatments within 30 days or one treatment leading to a regimen of continuing treatment, with the first in-person visit within seven days; incapacity due to pregnancy or prenatal care; chronic conditions needing visits at least twice a year, such as asthma or diabetes; and conditions requiring multiple treatments, such as dialysis (29 CFR 825.115). Ordinarily the common cold, flu and earaches do not qualify unless complications arise (29 CFR 825.113(d)).

How much leave, and how the year is counted. The entitlement is 12 workweeks in a 12-month period for the first five reasons, and 26 workweeks in a single 12-month period for military caregiver leave (29 CFR 825.200). The employer chooses one method for the 12-month period and applies it to all employees: the calendar year, a fixed leave year, 12 months measured forward from the first FMLA leave, or a rolling 12 months measured backward. If it does not choose, the method most beneficial to the employee applies, and changing methods requires at least 60 days' notice to all employees. Example from the regulation: under the rolling method, an employee who took eight weeks in the past 12 months has four weeks left.

Intermittent and reduced schedule leave. Leave can be taken in separate blocks for one qualifying reason, or on a schedule that reduces the employee's usual hours. For the employee's own condition or a family member's, there must be a medical need that is best accommodated this way,. For bonding with a healthy child, intermittent leave needs the employer's agreement (29 CFR 825.202). The employer must count the leave in the shortest increment it uses for any other leave, not more than one hour, and may not charge more leave than the employee actually took (29 CFR 825.205). If an employer tracks vacation by the hour and sick leave by the half hour, FMLA leave is tracked in half hours at most.

Paid leave and the FMLA. FMLA leave is generally unpaid, but an employee may choose, or the employer may require, that accrued paid leave run at the same time. The employer must tell the employee which applies. Qualifying leave under a disability plan or workers' compensation can also be designated as FMLA leave, but paid-leave substitution cannot be required for it (29 CFR 825.207).

Employee notice. When leave is foreseeable, such as an expected birth or planned treatment, the employee must give at least 30 days' advance notice, or notice as soon as practicable if 30 days is not possible. For unforeseeable leave, notice is due as soon as practicable. An employee need not mention the FMLA by name the first time, but must give enough information for the employer to tell it may apply, and calling in "sick" without more is not enough. Employers may require their usual call-in rules absent unusual circumstances (29 CFR 825.302 and 825.303).

Employer notices, step by step. (1) Post the general notice where employees and applicants can see it; electronic posting works if it meets the requirements. (2) If the employer has any eligible employees, include the general notice in its handbook or other written benefit or leave guidance, or give it to each new employee at hire. (3) When an employee requests leave or you learn it may qualify, give an eligibility notice within five business days, stating a reason if the employee is not eligible. (4) Give a written rights and responsibilities notice with it. (5) When the employer has enough information, tell the employee in writing within five business days whether the leave is designated as FMLA leave and how much leave is counted. Optional Form WH-381 covers the eligibility and rights notices (29 CFR 825.300). The employee handbook is one place the regulation allows for step 2.

Medical certification. For leave for a serious health condition, the employer may require a certification from the health care provider, usually requested when the employee gives notice or within five business days after. The employee has 15 calendar days to return it unless that is not practicable despite diligent, good faith efforts. If it is incomplete or insufficient, the employer must say in writing what is missing and give seven calendar days to cure it. The Department's optional forms WH-380-E (employee) and WH-380-F (family member) can be used, but no information may be required beyond what the regulations specify (29 CFR 825.305 and 825.306). An employer with a uniformly applied policy may require a fitness-for-duty certification before restoring an employee who took leave for their own serious health condition (29 CFR 825.312).

Health benefits and reinstatement. During leave the employer must maintain group health coverage on the same conditions as if the employee had kept working, including family coverage and any plan changes made while the employee is out (29 CFR 825.209). The employee keeps paying their usual share (29 CFR 825.210). If a premium is more than 30 days late, the obligation can end, but only after written notice mailed at least 15 days before coverage stops (29 CFR 825.212). On return, the employee must be restored to the same position or an equivalent one with equivalent pay, benefits and other terms, even if the job has been restructured or filled (29 CFR 825.214). An equivalent position is virtually identical in pay, benefits and working conditions (29 CFR 825.215). There is no greater right to reinstatement than if the employee had stayed at work, so a layoff that would have happened anyway can end the obligation, and the employer must prove it (29 CFR 825.216). A limited exception exists for a "key employee," a salaried eligible employee among the highest paid 10 percent within 75 miles, when restoration would cause substantial and grievous economic injury (29 CFR 825.217).

Interference and retaliation. Employers may not interfere with, restrain or deny the exercise of FMLA rights, or discharge or discriminate against anyone for opposing a practice unlawful under the Act or for taking part in a proceeding. This includes discouraging leave and reducing hours or moving employees between worksites to keep them ineligible. FMLA leave cannot be a negative factor in hiring, promotion or discipline, and cannot be counted under no-fault attendance policies. Employees cannot waive prospective FMLA rights (29 CFR 825.220). Where the leave also involves a disability, the Americans with Disabilities Act may separately apply, and the employer must provide leave under whichever law gives greater rights (29 CFR 825.702). Leave rules also sit alongside at-will employment, which the FMLA limits where leave is involved.

Where states differ. Nothing in the FMLA overrides state or local laws giving greater leave rights, and an employer covered by only one law follows that one. Leave that qualifies under both counts against both entitlements (29 CFR 825.701). As one labelled example, the California Civil Rights Department's quick reference guide says the California Family Rights Act applies to employers with 5 or more employees, covers a wider list of family members including grandparents, grandchildren, siblings, domestic partners and a "designated person," and that when both laws apply the employee receives the benefit of the more protective law. Check your own state agency.

Recordkeeping. Covered employers must keep, for no less than three years, basic payroll and identifying data, the dates FMLA leave is taken (designated as FMLA leave), the hours when leave is taken in less than full days, copies of notices given and received, documents describing leave policies, premium payments, and records of designation disputes. No particular form is required. Certifications and medical histories must be kept as confidential medical records in files separate from the usual personnel file (29 CFR 825.500).

What is at stake. An employer that violates the FMLA's prohibitions is liable to the affected employee for lost wages, salary and benefits (or actual monetary losses up to 12 weeks of pay, or 26 weeks for military caregiver leave), interest, and an equal amount as liquidated damages unless the employer proves good faith and reasonable grounds, plus equitable relief such as reinstatement, and a reasonable attorney's fee, expert fees and costs. Suits generally must be filed within two years of the last event, or three years for a willful violation (29 U.S.C. 2617). Confirm specifics with the Department of Labor, your state agency or a qualified professional.

Questions employers ask. Can we require employees to use PTO? Yes, the employer may require accrued paid leave to run with unpaid FMLA leave, with notice (29 CFR 825.207). Does a small business have to comply? Only if it meets the coverage test (29 CFR 825.104). Can we ask for a doctor's note? For a serious health condition, yes, using the certification rules and time limits above (29 CFR 825.305).

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