Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a US federal law giving eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, with group health coverage maintained throughout.

Eligibility is a two-sided test

Most FMLA confusion starts here. Both the employer and the employee have to qualify.

The employer must be covered:

• Private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year
• Public agencies and public and private elementary and secondary schools, regardless of size

The employee must be eligible:

• 12 months of employment with that employer (need not be consecutive)
• 1,250 hours of service in the 12 months before leave begins
• Works at a site where the employer has 50 or more employees within 75 miles

That last condition is the one people miss. An employee of a 200-person company can still be FMLA-ineligible if their own worksite is remote and under-populated.

Qualifying reasons

Twelve workweeks for:

• Birth of a child and bonding, within one year of birth
• Placement of a child by adoption or foster care, and bonding, within one year
• Caring for a spouse, child, or parent with a serious health condition
• The employee’s own serious health condition making them unable to do their job
• A qualifying exigency arising from a family member’s covered active duty

Twenty-six workweeks, in a single 12-month period, for military caregiver leave — caring for a covered servicemember or veteran with a serious injury or illness.

What “serious health condition” actually means

It is not the same as “seriously ill.” The test is inpatient care or continuing treatment by a health care provider.

Inpatient care means an overnight stay in a hospital, hospice, or residential medical facility, plus related recovery.

Continuing treatment most commonly means more than three consecutive calendar days of incapacity plus either treatment by a provider within seven days of onset followed by a further visit within 30 days, or a prescribed course of continuing treatment. It also covers pregnancy and prenatal care, chronic conditions with periodic visits, permanent or long-term conditions, and multiple treatments.

A two-day flu with no doctor’s visit is not an FMLA condition. A chronic condition causing occasional single-day absences can be.

Who counts as family — and who doesn’t

FMLA family is narrower than most people assume. Spouse, parent, and son or daughter only.

• Parent includes biological, adoptive, step, and foster parents, and anyone who stood in loco parentis to the employee. It explicitly excludes parents-in-law.
• Son or daughter means under 18, or 18 and over and incapable of self-care because of a mental or physical disability. It includes children the employee stands in loco parentis to, with no biological or legal relationship required.
• Siblings and grandparents are not covered — except as next of kin for military caregiver leave when no closer relative exists.

Denying leave to care for a mother-in-law is lawful under the FMLA. Denying it to care for a child the employee raises but never legally adopted usually isn’t.

Paid leave, state programs, and the 12-month period

FMLA leave is unpaid. Two things follow:

Employers may require, and employees may elect, substitution of accrued paid leave — running PTO or sick leave concurrently so the employee is paid while the FMLA clock runs.

State paid family and medical leave programs increasingly provide the wage replacement the FMLA doesn’t. Where both apply, they generally run concurrently, so the employee is paid by the state and job-protected by the FMLA. They have separate eligibility rules, and an employee can qualify for one and not the other.

Employers must also choose how they define the 12-month period. There are four permitted methods, and the choice materially changes how much leave an employee has available — see rolling calendar year.

Employer obligations most often missed

Three notices, each due within five business days:

• Eligibility notice — after the employee first requests leave for a potentially qualifying reason
• Rights and responsibilities notice — issued with the eligibility notice
• Designation notice — once the employer determines the leave is FMLA-qualifying

Plus a posted general notice and handbook language. Failure to notify can itself constitute interference with FMLA rights, exposing the employer to lost compensation, liquidated damages, and equitable relief. Employers may also require medical certification, generally allowing the employee 15 calendar days to return it.

Frequently asked questions

Is FMLA leave paid? No. Pay comes from substituted PTO, a state PFML program, or an employer policy.

Can I be fired while on FMLA leave? Not for taking it. You can still be affected by a layoff or termination that would have happened regardless.

Can leave be taken a few hours at a time? Yes, intermittently or on a reduced schedule where medically necessary. Bonding leave after birth or placement requires employer agreement.

Find out more in our blog article about FMLA: What is the Family and Medical Leave Act (FMLA)? 

This entry is general information, not legal advice. Verify against current DOL regulations and applicable state law.