FMLA Requirements for Employers: The Key Components of Administration

FMLA Requirements for Employers at a Glance

1. Coverage: Is the Employer Subject to the FMLA?

A private employer is covered if it employs 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year. Public agencies are covered regardless of size, and so are public and private elementary and secondary schools. Separate entities can be counted together if they are an integrated employer, and employees who are jointly employed are counted by both employers.

Coverage and eligibility are separate questions. A covered employer must post the general notice even if none of its employees is eligible. The details are in FMLA eligibility and qualifying reasons.

2. Eligibility: Does This Employee Qualify?

An employee of a covered employer is eligible if all three of these are true:

• The employee has been employed by the employer for at least 12 months, which need not be consecutive.
• The employee has at least 1,250 hours of service in the 12 months immediately before leave begins. Hours of service means hours actually worked under Fair Labor Standards Act principles, so paid vacation, holidays, and sick time do not count.
• The employee works at a worksite where the employer has 50 or more employees within 75 miles. A remote employee’s worksite is the office he or she reports to or receives assignments from, not the home.

Enrollment in the employer’s health plan has nothing to do with eligibility. Airline flight crew employees have a different hours test, and employees returning from military service get credit for the time they would have worked. For how to run each test, see FMLA eligibility and qualifying reasons.

3. Qualifying Reasons

An eligible employee may take FMLA leave for:

• The birth of a child and to care for the newborn
• Placement of a child with the employee for adoption or foster care
• Care of a spouse, son, daughter, or parent with a serious health condition
• The employee’s own serious health condition that makes the employee unable to perform the functions of the job
• A qualifying exigency arising from a spouse’s, child’s, or parent’s covered active duty
• Care of a covered servicemember with a serious injury or illness

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Mental health conditions can qualify on the same terms as physical ones. See FMLA for mental health conditions and, for the full list of reasons and family definitions, FMLA eligibility and qualifying reasons.

4. Amount of Leave and the 12-Month Period

The entitlement is a total of 12 workweeks in a 12-month period for all qualifying reasons combined, and 26 workweeks in a single 12-month period for military caregiver leave. Leave may be taken in one block, or intermittently or on a reduced schedule when medically necessary. Intermittent leave for bonding with a healthy newborn or newly placed child requires the employer’s agreement.

The employer chooses how to measure the 12-month period: the calendar year, another fixed year, a year measured forward from the first day of leave, or a rolling period measured backward. The method must be applied uniformly, and changing it requires 60 days’ notice to all employees. An employer that never chose a method is held to whichever one gives the employee the best result.

Intermittent leave must be counted in the smallest increment the employer uses for other leave, and never more than one hour. An employee’s entitlement cannot be reduced by more than the time actually taken.

More detail: four ways to count the 12-month period and the FMLA intermittent leave guide.

5. Recognizing the Request and Giving the Required Notices

An employee does not have to mention the FMLA. It is enough to give information that lets the employer see the leave may qualify. From that point the duty to act is the employer’s, which is why training supervisors to pass requests to HR is the most valuable control in the whole process.

The regulations require four employer notices.

A willful failure to post the general notice can draw a civil money penalty. Check the current regulation at ecfr.gov for the inflation-adjusted amount. Failing to give the individual notices may be interference with the employee’s rights if it causes harm.

Two points about designation deserve care. The employer is responsible in all circumstances for designating qualifying leave. The Department of Labor’s position, in Opinion Letter FMLA2019-1-A, is that neither the employer nor the employee may decline FMLA protection for qualifying leave or delay the designation, even if the employee would rather save the time. That opinion letter expressly disagrees with the Ninth Circuit’s decision in Escriba v. Foster Poultry Farms (2014); employers in Ninth Circuit states should confirm the current rule with counsel.

The DOL publishes optional forms for these notices and for certification. Check the DOL forms page for current versions. The expiration date on a form relates to paperwork approval, not necessarily to the form’s content.

More detail: employer notice duties and deadlines, the designation notice: deadlines and common errors, and FMLA forms: which DOL form to use and when.

6. Medical Certification

An employer may require certification for leave due to a serious health condition of the employee or a family member, and for military family leave. It is the employer’s choice, but if you ask, the rules are specific:

• Request it when the employee gives notice or within five business days after, and tell the employee the consequences of not providing it.
• Allow at least 15 calendar days to return it.
• If it is incomplete or insufficient, say so in writing, state what is missing, and allow seven calendar days to cure.
• Contact with the health care provider is limited to authentication and clarification, and it must be made by a health care provider, a human resources professional, a leave administrator, or a management official. The employee’s direct supervisor may never make the contact.
• A second opinion, at the employer’s expense, is available when there is reason to doubt the validity of a certification, and a third opinion is final and binding.
• Recertification is generally limited to once every 30 days in connection with an absence, with longer intervals where the certification states a longer duration and shorter ones in defined circumstances.

More detail: medical certification, recertification, and second opinions.

7. Benefits During Leave

During any FMLA leave the employer must maintain the employee’s group health plan coverage on the same conditions as if the employee had been working continuously. The employee keeps paying his or her usual share of the premium. If a payment is more than 30 days late, coverage may be dropped, but only after written notice mailed at least 15 days before coverage ends, and coverage must be restored when the employee returns. An employer may recover its share of premiums from an employee who does not return to work after leave, with exceptions that include the continuation of a serious health condition.

FMLA leave is unpaid. The employee may choose, or the employer may require, that accrued paid leave run at the same time, under the terms of the employer’s normal paid leave policy.

More detail: FMLA benefits maintenance.

8. Job Restoration

On return, the employee is entitled to the same position or an equivalent one with equivalent pay, benefits, and other terms and conditions. An equivalent position is one that is virtually identical. The right has limits: the employee has no greater right than if he or she had worked through the leave period, and a narrow exception applies to certain highly paid key employees, with notice steps the employer must follow exactly. A fitness-for-duty certification may be required under a uniformly applied policy if the designation notice said so.

More detail: FMLA job restoration rights and the key employee exception and fitness-for-duty certification requirements.

9. Interference and Retaliation

An employer may not interfere with, restrain, or deny the exercise of FMLA rights, and may not discriminate or retaliate against someone for using them. The regulations give examples: refusing to authorize leave, discouraging an employee from using it, counting FMLA leave under a no-fault attendance policy, or using leave as a negative factor in hiring, promotion, or discipline. Employees cannot waive their future FMLA rights.

An employee may file a complaint with the Wage and Hour Division or a private lawsuit. A suit must generally be filed within two years of the last violation, or three years if the violation was willful.

None of this prevents an employer from dealing with real misuse. See FMLA abuse and how employers may respond.

10. Recordkeeping Under 825.500

Covered employers must keep the records listed in 29 CFR 825.500 for no less than three years and make them available to the Department of Labor on request. No particular form is required. The records include:

• Basic payroll and identifying data, including hours worked and pay
• Dates FMLA leave is taken, designated in the records as FMLA leave
• Hours of leave, where it is taken in increments of less than a full day
• Copies of employee notices given to the employer and of all written notices given to employees
• Documents describing employee benefits and leave policies
• Premium payments of employee benefits
• Records of any dispute about designation

Certifications, recertifications, and medical histories must be kept as confidential medical records in files separate from the usual personnel files. Supervisors may be told about necessary work restrictions and accommodations, but not the underlying medical details.

More detail: payroll recordkeeping for the FMLA.

When FMLA Leave Runs Out, and When Other Laws Apply

The FMLA rarely operates alone. State family and medical leave laws, paid leave programs, short-term disability, and workers’ compensation often run beside it, and the FMLA does not override a state law that gives greater rights. Decide in advance which entitlements run concurrently and tell employees. See coordinating FMLA with other leave entitlements.

Exhaustion is a decision point, not an ending. Additional leave may be a reasonable accommodation under the ADA. Ending employment automatically on the day FMLA leave runs out is a common source of claims. See transitioning from FMLA leave to ADA accommodation.

Where FMLA Administration Fails

Almost always at a hand-off: a supervisor who did not escalate, a notice that was generated but cannot be proved sent, a certification requested but not tracked, or an exhaustion date that triggered an automatic termination with no review. Build checks at those points. Our post on common pitfalls in FMLA administration lists the failures that recur most, and the FMLA Compliance Checklist turns this article into an audit.

Because the cases that cause the most trouble involve more than one law, many administrators move from FMLA basics to integrated training. The two-day Leave and Accommodation Management seminar is an advanced, instructor-led workshop that works through FMLA, ADA, PWFA, USERRA, and workers’ compensation cases together.

Frequently Asked Questions

The Bottom Line

The FMLA requirements for employers are a sequence: coverage, eligibility, reason, amount, notices, certification, benefits, restoration, records. Run the sequence the same way for every request, document each step, and treat exhaustion as a prompt to look at the ADA and state law. Use the linked posts for the detail behind each step and the FAQs on FMLA for quick answers.

For practice on the cases where the FMLA overlaps other laws, see the Leave and Accommodation Management seminar. This article is general education, not legal advice.