FMLA leave: who qualifies, how it works and what employers must do

FMLA leave is time off protected by the federal Family and Medical Leave Act of 1993. An eligible employee can take up to 12 workweeks a year for a birth or adoption, their own serious illness, a sick spouse, child or parent, or certain military family needs, then come back to the same or an equivalent job. The leave is unpaid, but the employer must keep the employee’s health insurance going. This guide covers what FMLA is, FMLA eligibility for employers and employees, how leave is counted, and the practical FMLA rules for employers, using the U.S. Department of Labor’s Wage and Hour Division (WHD) guidance and the FMLA regulations at 29 CFR Part 825. The rules are current as of November 4, 2026.

What is FMLA?

The FMLA is a federal law that gives eligible workers two protections. The first is job protection: the employee cannot be fired or replaced because they took leave, and they return to the same or a virtually identical position. The second is benefit protection: group health coverage continues on the same terms as if the employee were still working, including family coverage.

It does not give pay. That is the point people most often miss. FMLA is a right to be absent without losing your job, not a paid benefit. Pay during FMLA leave comes from three other places: the employer’s own paid leave (vacation, sick time or paid time off), short-term disability insurance, or a state paid family and medical leave program.

FMLA also does not cover every reason for missing work. A death in the family, for example, is not a qualifying reason, which is why many employers offer separate bereavement leave. Ordinary colds, routine dental work and childcare when school is closed are not covered either, unless they meet the definitions below.

Which employers are covered by FMLA?

According to the WHD, the FMLA applies to three groups:

• Private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year. All employees count toward the 50, including part-time workers and employees on leave, and at every location, not just one.
• Public agencies, including federal, state and local government, of any size.
• Public and private elementary and secondary schools (local educational agencies), of any size.

A covered employer has duties even when no employee is eligible yet. It must display the FMLA general notice (the WHD poster) where employees can see it, or post it electronically. If the employer has eligible employees and an employee handbook, the FMLA notice must go in the handbook too. Our employee handbook template includes a leave section you can adapt.

FMLA eligibility: which employees qualify?

Working for a covered employer is not enough. Under 29 CFR 825.110, an employee is eligible only if they meet all three tests on the date leave begins:

The 1,250-hour test is where accurate time records matter most. It works out to about 24 hours a week over a year (1,250 ÷ 52 = 24.04), so a steady part-timer at 25 hours a week qualifies and one at 24 hours a week does not. If your time records are a stack of paper cards, start with our guide to time and attendance tracking.

FMLA qualifying reasons

The WHD lists these reasons for FMLA leave:

• Birth of a child and bonding with the newborn. Bonding leave must be completed within 12 months of the birth.
• Placement of a child for adoption or foster care, and bonding afterward, also within 12 months of placement.
• Caring for a spouse, child or parent with a serious health condition. Parents-in-law are not covered. A “child” for this purpose is generally under 18, or 18 or older and unable to care for themselves because of a disability.
• The employee’s own serious health condition that makes them unable to do their job.
• Qualifying exigency leave for a family whose spouse, son, daughter or parent is on covered active duty, or has been notified of an impending call to it. Under 29 CFR 825.126, exigencies include short-notice deployment, military events, childcare and school arrangements, financial and legal arrangements, counseling, post-deployment activities, care for the military member’s parent, and up to 15 calendar days with the member during each period of rest and recuperation leave.
• Military caregiver leave to care for a covered servicemember or a covered veteran (discharged within the past five years) with a serious injury or illness. The employee can be the service member’s spouse, son, daughter, parent or next of kin, and can take up to 26 workweeks.

What counts as a serious health condition? In short, an illness, injury or condition that involves either inpatient care (an overnight stay in a hospital, hospice or residential medical facility) or continuing treatment by a health care provider. Continuing treatment includes incapacity of more than three consecutive full days with follow-up treatment, pregnancy and prenatal care, chronic conditions such as asthma or diabetes that cause episodic flare-ups, and long-term or permanent conditions. Mental health conditions can qualify on the same terms.

How much FMLA leave do employees get?

Up to 12 workweeks in a 12-month period for all reasons combined except military caregiver leave. Military caregiver leave allows up to 26 workweeks in a single 12-month period, measured forward from the first day of that leave, and the employee’s total FMLA leave for all reasons in that period cannot exceed 26 weeks.

One limit applies to married couples who work for the same employer: the employer may cap them at a combined 12 weeks for birth and bonding, adoption or foster placement, and caring for a parent. Leave for their own serious health condition or a sick child is not shared.

Choosing the 12-month period

The employer picks one of four methods in 29 CFR 825.200 and must apply it to everyone the same way:

If an employer never chooses, the method that is best for the employee applies. Switching methods requires 60 days’ notice to all employees.

Intermittent and reduced-schedule FMLA leave

FMLA leave does not have to be taken all at once. When it is medically necessary, an employee can take it in separate blocks (intermittent leave), such as a day each month for chemotherapy, or by working fewer hours (a reduced schedule), such as five hours a day instead of eight during recovery. Military family leave can also be taken this way. For bonding with a new child, the employer has to agree before leave is split up.

The leave is counted in the smallest unit the employer’s payroll system uses for other absences, as long as that is no more than one hour. The 12 weeks are measured against the employee’s normal schedule:

• An employee who normally works 40 hours a week has 480 hours (12 × 40).
• An employee who normally works 30 hours a week has 360 hours (12 × 30).
• If the normal schedule varies, use the weekly average of the hours scheduled over the 12 weeks before leave starts.

Overtime matters too. If a full-time employee is normally required to work mandatory overtime and cannot because of a health condition, the missed overtime hours count as FMLA leave. Voluntary overtime the employee simply does not pick up does not. When planned treatment can be scheduled, the employee should try to arrange it so it disrupts operations as little as possible, and the employer may temporarily move them to an equivalent job that better fits the reduced schedule.

Intermittent absences that are not tracked as FMLA leave tend to show up as attendance problems. Make sure your attendance policy excludes FMLA-protected time from points and warnings, and that managers know a no call, no show rule may not apply when the absence was a covered medical emergency.

FMLA notice, certification and the WH forms

Employee notice

For foreseeable leave, such as a planned surgery or a due date, the employee must give at least 30 days’ notice. When that is not possible, they give notice as soon as practicable, which the regulations say usually means the same or the next business day after learning of the need. For unexpected leave, they follow the employer’s usual call-in procedure unless there are unusual circumstances. The employee does not have to say “FMLA.” They only need to give enough information to suggest the leave may qualify.

Employer notices and forms

Once the employer learns that leave may be for an FMLA reason, the clock starts. The WHD publishes optional forms that meet the rules:

The forms are optional, but every element they cover is required. Employers can use their own versions or a leave vendor’s. Download current copies from the WHD forms page at dol.gov. The WHD notes that the expiration date printed on its forms relates to federal paperwork approval and does not stop the form from being used.

Some rules about certification:

• The employer may ask for certification but cannot demand a diagnosis beyond what the form asks for. If the certification is incomplete, the employer must say what is missing in writing and give 7 calendar days to fix it.
• A direct supervisor may never call the employee’s doctor. HR, a leave administrator or a health care provider for the employer can contact the provider only to clarify or authenticate the form.
• For an ongoing condition, the employer can usually ask for recertification no more often than every 30 days, and only in connection with an absence, unless the certification sets a longer duration.
• An employer with a uniform policy can require a fitness-for-duty certification before an employee returns from leave for their own condition, if it said so in the designation notice.

Medical records must be kept confidential and stored separately from personnel files. Keep FMLA records for at least three years.

Is FMLA leave paid? Substituting PTO

FMLA leave is unpaid, but paid leave can run at the same time. The employee may choose to use accrued vacation, sick leave or PTO during FMLA leave, and the employer may require it. In both cases the paid days count against the 12 weeks; they run concurrently, not one after the other. Employers who require substitution must follow the normal terms of their paid leave policy, such as a requirement to use sick time in full-day blocks, and should say so in the WH-381 notice.

Two exceptions. If the employee is getting short-term disability or workers’ compensation wage benefits during the leave, the employer cannot require paid leave to be used, although the two sides can agree to top up the benefits with it. And in some states, the state paid leave law limits whether the employer can require employees to use PTO before or during a state-paid leave. Delaware’s Department of Labor, for example, does not allow employers to require employees to use up PTO before they receive Delaware Paid Leave benefits.

Exempt salaried employees on intermittent FMLA leave are a special case: the employer can deduct pay for hours of unpaid FMLA leave without breaking the salary basis test. Our guide to exempt vs non-exempt employees covers the salary basis rules in full.

Health benefits and job restoration

Health coverage. The employer keeps the employee’s group health plan going during leave on the same terms as before. The employee still pays their usual share of the premium; the employer and employee should agree how, for example through payroll deductions from paid leave or a monthly payment. If the employee does not return from leave for reasons other than a continuing serious health condition or another circumstance beyond their control, the employer may be able to recover the premiums it paid. Other benefits, such as life insurance or PTO accrual, follow the employer’s policy for other types of unpaid leave.

Same or equivalent job. At the end of leave, the employee returns to the same job or one that is virtually identical in pay, benefits, shift, schedule, location and duties. They get any general raises given to everyone while they were out. They are not protected from events that would have happened anyway, such as a layoff that would have included them, but the employer has to be able to show that.

The key employee exception. An employer can deny restoration to a key employee: a salaried, eligible employee among the highest-paid 10% of employees within 75 miles of the worksite. The employer must show that restoring them would cause “substantial and grievous economic injury” to operations, not just inconvenience. It also has to give written notice when the employee asks for leave that they are a key employee, then a second written notice, in person or by certified mail, when it decides to deny restoration, and give the employee a reasonable chance to return. Health coverage continues regardless, and the employer cannot recover those premiums. It is a narrow exception that small employers rarely use.

No interference or retaliation. Employers cannot discourage employees from taking FMLA leave, count it against them under an attendance or bonus policy, or punish them for complaining about a violation. Employees can file a complaint with the WHD or sue.

State family and medical leave laws

FMLA is a floor. When a state law is more generous, the employer follows whichever rule is better for the employee, and leave often runs under both at once. State laws go further in two ways.

State job-protected leave laws

Several states have their own unpaid leave laws that cover smaller employers, more relatives or more reasons. Two examples:

• California. The California Family Rights Act (CFRA) covers employers with 5 or more employees and gives up to 12 weeks of job-protected leave. It covers more family members than FMLA, including grandparents, grandchildren, siblings, domestic partners and a designated person, according to the California Civil Rights Department. Pregnancy disability is a separate leave in California.
• New Jersey. The New Jersey Family Leave Act gives up to 12 weeks in 24 months to care for a family member or a new child. It was amended to reach smaller employers and newer employees starting in July 2026, so check the New Jersey Division on Civil Rights for the thresholds that apply to you.

Other states, including Oregon, Connecticut and Washington, plus DC, have their own leave rules. The common pattern: lower headcount thresholds, shorter service requirements and broader definitions of family.

State paid family and medical leave programs

Paid family and medical leave (PFML) programs pay partial wages from a state insurance fund, usually financed by payroll contributions. As of November 2026, these states plus the District of Columbia are paying benefits:

Maryland’s program is scheduled to begin paying benefits in January 2028, after contributions start in January 2027. Benefit amounts, waiting periods, weeks of leave and whether the program itself protects the job differ by state. Delaware, for example, covers only parental leave for employers with 10 to 24 employees and exempts employers with fewer than 10. Check your state program’s website for the current rules and contribution rates, and make sure state contributions show correctly on employees’ pay stubs.

State paid leave and FMLA often overlap. A Massachusetts employee recovering from surgery may be on FMLA leave (job protection), state PFML (pay) and employer PTO top-up all at the same time. Whether the state program runs concurrently with FMLA is a state rule, so check it before designating leave.

FMLA worked examples

These are illustrative scenarios, not real cases.

Example 1: the 1,250-hour cutoff. A restaurant group has three locations within 20 miles of each other with 22, 18 and 15 employees, 55 in total, so it is covered and the 75-mile test is met. A line cook has worked there 14 months at a steady 24 hours a week. In the 12 months before her leave she worked 24 × 52 = 1,248 hours, two hours short of 1,250. She is not FMLA-eligible. If the group is in a state with its own leave law, she may still qualify under that law. If she had picked up one extra shift during the year, she would have qualified, which is why the employer needs accurate time records, not schedules.

Example 2: intermittent leave. A warehouse worker on a 40-hour schedule needs 4 hours off every Tuesday for treatment. His FMLA bank is 480 hours. Each Tuesday uses 4 hours, so after 10 weeks he has used 40 hours and has 440 left, enough for 110 more Tuesdays at that pace. Under a rolling 12-month period, hours used a year ago come back as they leave the look-back window.

Example 3: the calendar-year stack. An office manager’s employer uses the calendar year. She takes 12 weeks of FMLA leave from early October through late December 2026 for surgery and recovery. On January 1, 2027, she has a fresh 12 weeks and can take them right away if she still qualifies, for up to 24 weeks in a row. With a rolling period, she would have no FMLA leave left in January.

Example 4: PTO running concurrently. A retail assistant manager has 80 hours of PTO and takes 12 weeks of leave after the birth of a child. The employer’s policy requires paid leave to run with FMLA. Her first two weeks are paid from PTO, and the remaining 10 weeks are unpaid unless a state program or disability insurance pays benefits. All 12 weeks count as FMLA leave. Her health plan continues, and she keeps paying her share through a monthly payment once her paychecks stop.

FMLA rules for employers: what to do

1. Check coverage every year. Count employees in each workweek across all locations. Once you reach 50 in 20 workweeks, you are covered for the current and the following calendar year.
2. Post the notice and update the handbook. Display the WHD general notice, electronically if needed, and include FMLA rights in your handbook.
3. Choose your 12-month method and write it down. Many small employers choose the rolling period to prevent stacking.
4. Train managers to spot FMLA requests. An employee saying “my mother is in the hospital” or “I need surgery next month” starts the clock. Managers should pass it to HR the same day.
5. Meet the five-business-day deadlines for the eligibility notice (WH-381) and the designation notice (WH-382). Late or missing designation can make you liable if it harms the employee.
6. Decide how paid leave runs and say so in writing. If you require PTO to run concurrently, state it in the WH-381 notice and your policy.
7. Track hours accurately. Record FMLA leave in hours, separate from regular PTO, and keep health information in a separate confidential file. Keep records for at least three years.
8. Keep benefits going and plan the return. Arrange how the employee will pay premiums, and restore them to the same or an equivalent job and schedule.
9. Check state law. Find out whether your state has its own leave law or a paid leave program, and whether it runs at the same time as FMLA.

When in doubt about a specific case, especially terminations during or after leave, talk to an employment attorney before you act.

Frequently asked questions