Family and Medical Leave Act (FMLA) 101: A Guide for Employers

If your employee needs health-related time off, the Family and Medical Leave Act (FMLA) may require your company to provide it. This FMLA 101 guide will help you navigate the process.

Now that we’ve covered the basics, this guide will explain the Family and Medical Leave Act (FMLA) to help you handle employees’ leave requests confidently. Let’s begin!

What is the Family and Medical Leave Act (FMLA)?

The U.S. Department of Labor’s Wage and Hour Division enforces the Family and Medical Leave Act (FMLA), which is a federal law. It allows eligible employees to take unpaid leave for serious health conditions—their own or a family member’s—without risking their job, whether or not they have paid time off available.

Does my company/organization qualify for FMLA?

You are a covered employer if one of the following applies:

• You are a private employer that had at least 50 employees within 75 miles during at least 20 workweeks in the current or previous calendar year.
• You are an elementary, public, or private secondary school.
• You are a public agency, such as a local, state, or federal government agency. The Office of Personnel Management administers the FMLA, which Title II covers, to most federal employees.

FMLA covers private employers with at least 50 employees within 75 miles. FMLA does not cover smaller companies, but state laws such as California’s CFRA or New York’s PFL may still apply.

What Employers Need to Know About FMLA & Remote Employees

For remote workers, FMLA coverage is based on the location where they report or receive assignments. If you have 50 or more combined onsite and remote employees reporting to the same site, your company must provide FMLA coverage.

Does my employee qualify for the Family Medical Leave Act (FMLA)?

Employees are eligible if they have worked for you for at least 12 months as of the date their FMLA leave will start.

• The 12 months do not have to be consecutive, and any combination of 52 weeks counts as well.
• Part-time, temporary, and seasonal work all count toward the 12 months, as do weeks listed on payroll.
• If your employee had a break in employment with you that lasted 7 years or longer, you are not required to count the time prior to the break, unless:
  • Their break is covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • You and your employee have a written agreement (including a collective bargaining agreement) that you intend to rehire them after their break.
  • You can voluntarily consider your employees’ employment periods prior to a break of more than 7 years, but they must do this for all employees.

Your employee must have worked at least 1,250 hours (about 24 hours a week) in the 12 months before their FMLA leave starts.

• Employers must calculate FMLA entitlement based on each employee’s actual average workweek, not a standard 40-hour workweek. The employee’s leave allotment should reflect their real hours worked.
  • For more information, see our article on FMLA Leave Allotments.
• Other criteria for hours worked under the Fair Labor Standards Act (FLSA) include only time actually worked. Therefore, the following do not apply:
  • Vacation
  • Personal leave
  • Sick leave
  • Holidays
  • Any other form of paid time off (PTO)
  • Unpaid leave/layoffs
• If your employee has returned to work from fulfilling a USERRA-covered military service obligation, they are credited with the hours of service that would have been performed but for the period of military service.
• If you don’t keep accurate records of your employees’ hours worked, you, as the employer, must prove they haven’t met the hours of service requirement. This applies even if tracking isn’t required, as with teachers working extra hours outside the classroom or at home.

To be eligible, your employee must work at a location where you employ at least 50 people within 75 miles, as of the date their FMLA leave begins.

• If your company/organization is a public agency or school, your employee is covered, but they must meet the above requirements.
  • Review section 825.108(c) of the FMLA regulations for more information about the eligibility of public agency employees, and section 825.600(b) for more information about the eligibility of school teachers/employees.
• If your company/organization includes airline flight crew employees, see section 825.801 of the FMLA regulations for more information specific to that profession.

What reasons can your employee request FMLA leave?

FMLA leave applies to family or medical reasons.

FMLA Eligibility:

1. Your employee has a new child (a birth, an adoption, or a foster care placement).
2. Your employee has a child, spouse, or parent who has a serious health condition.
3. Your employee has a serious health condition that leaves you unable to work.
   1. A serious health condition includes mental and physical health conditions that require:
      1. Inpatient care, which includes an overnight hospital/other medical care facility stay.
      2. Ongoing treatment by a healthcare provider for conditions that incapacitate someone for over three days and require continued medical care (appointments, counseling, etc).
         1. For more information on mental health conditions under the FMLA, check out this article here.
4. Your employee has a qualifying urgent need for leave related to a family member’s foreign deployment.
5. Your employee has a family member who is a current service member or recent veteran with a serious injury or medical condition.

How does my employee request FMLA leave?

To take FMLA leave, employees must provide proper notice based on their situation.

When your employee is planning on taking leave:

Your employee must give at least 30 days’ notice, or as soon as possible and practical. 

• If your employee needs to take leave for a military deployment, they must notify you, regardless of how far in advance they give you notice.
• For planned medical treatment, your employee needs to notify you and schedule it for mutual convenience.

When your employee isn’t planning on taking leave:

• If your employee needs unexpected leave, they must notify you as soon as possible, ideally in accordance with their policy.

Employees do not have to mention “FMLA” when first requesting leave, but must provide enough information to show their request is for an FMLA-qualifying reason.

What if my employee is on FMLA leave and no longer needs it?

If their need for FMLA leave changes while on leave, you may require notice from them and their doctor, whether their return is sooner or delayed. You may also need periodic updates on their status and intent to return to work.

How do I let my employees know they have FMLA coverage?

As an employer, you must notify employees about FMLA leave in your handbook and post a workplace notice. Failure to do this may result in a fine.

When your employee requests FMLA leave, you must notify them of eligibility within 5 business days and provide a written notice of your expectations. Once qualified, issue a written notice confirming FMLA leave.

Do I keep my employee on health insurance for FMLA?

You must maintain employees’ group health insurance during FMLA leave. If they pay part of the premium, this continues. Inform them of the payment schedule.

How do I give my employee their job back after coming back from FMLA?

When employees return from FMLA leave, restore them to their previous or an equivalent job with the same pay, benefits, location, and shift.

• Same pay
• Benefits
• Location
• Shift

Do not retaliate against employees for taking FMLA leave. Do not count FMLA leave as an absence.

• You can’t use the leave as a negative factor in promotions or hiring.

You do not have to pay performance bonuses during FMLA leave, but you cannot disqualify employees from “perfect attendance” bonuses solely due to FMLA leave.

What data do I record for my FMLA employee?

For at least 3 years, you must keep FMLA-related records, including:

• Payroll data
• Dates of FMLA leave
• Copies of all FMLA notices

What happens if I don’t provide my employee with an FMLA notice?

Failure to notify your employee of their FMLA rights may leave you liable for compensation and benefits lost, as well as the following liquidated damages:

• Employment
• Reinstatement
• Promotion
• Any other relief tailored to the harm suffered

How do FMLA and ADA interact?

Your employees’ need for leave due to medical reasons could also fall under the Americans with Disabilities Act (ADA), as well as FMLA and Workers’ Compensation, and can overlap. This can create a challenge for you, as the employer, in deciding which category your employee falls under. 

The following questions can help you determine what works best for your employee:

1. Does your private company/organization have 15 or more employees? If yes, then the ADA applies to them.
2. Does your private company/organization have 50 or more employees? If yes, then the FMLA applies to them as well. 
3. Is your employee’s injury work-related? If yes, then Workers’ Compensation applies to them. 
4. Does your employee have a serious health condition (not short-term or temporary)? If yes, then the FMLA applies to them.
5. Does your employee’s condition meet the definition of disability? If yes, then the ADA applies to them.

Some states have their own disability discrimination laws with different requirements and may cover employers with fewer employees than the federal ADA. If you’re unsure about your obligations, always check with your HR Business Partner (HRBP) for guidance.

How Nextep Helps:

Whether you’re an employee or employer, Nextep is here to set you up for success!

Policy Development and Handbooks

Nextep can help ensure that you, as an employer, have a legally sound, up-to-date written FMLA policy in your employee handbook, as required by law. 

Nextep can also customize the FMLA policy to account for state-specific “mini-FMLA” laws (like CFRA in CA or PFML in MA) that often overlap with federal rules, helping set clear rules for how employees must request leave and preventing “he-said, she-said” disputes later.

Form Templates and Documentation

Nextep can help provide templates for the following to help set up the “paper trail”, which ensures the client meets the strict 5-day notification deadlines:

• Notice of Eligibility
• Rights and Responsibilities
• Medical Certification

Nextep also provides confidentiality guidance, which advises clients on how to store medical records in a separate, secure file, a frequent point of failure in DOL audits.

Manager Training and Guidance

Nextep can help to train your managers to identify FMLA-qualifying leave and recognize when an employee’s request for “time off to help my mom” actually triggers an FMLA obligation.

Nextep can also provide anti-retaliation coaching: providing a “gut check” for clients who want to discipline an employee for attendance, ensuring they aren’t accidentally counting FMLA-protected absences.

Benefits Integration

Nextep can help the client set up a process to collect the employee’s portion of health insurance premiums while they are on unpaid leave, as well as help prepare for COBRA readiness. If the employee fails to return from their leave, Nextep handles the transition to COBRA, ensuring no lapse in the required notifications.

How to learn more information

Frequently Asked Questions (FAQ):

• Is FMLA paid or unpaid? Technically, FMLA is unpaid leave. It provides job protection and maintains your employee’s health insurance, but it does not require you to pay your employee while you are away. We have, however, seen some employers opt to provide all or part of an employee’s pay while on FMLA. In these cases, we recommend that you consult with your HR expert to create a policy that protects your company.
• Can PTO be used with FMLA? Yes. Your employee may choose, or you may require them to, substitute accrued paid leave. This can be vacation, sick, or personal time to cover the unpaid FMLA period. This allows them to receive a paycheck while using their FMLA job protection. Note: If they are receiving state-paid benefits (like in MN, ME, or DE), you generally cannot force them to use PTO at the same time.
• How is FMLA leave impacted by state-paid leave? In addition to FMLA, several states have their own paid leave programs. In 2026, these states have implemented programs that provide wage replacement while the employee is on leave.
  • Minnesota: Paid benefits began Jan 1, 2026.
  • Delaware: Claims applications opened Jan 1, 2026.
  • Maine: Benefits became available May 1, 2026. FMLA typically runs concurrently (at the same time) with these state benefits. Your employee receives money from the state and job protection under the federal FMLA.
• Does FMLA cover stress or anxiety? Yes, provided a healthcare provider certifies it as a “serious health condition.” This usually means the condition requires inpatient care or “continuing treatment”. This can be regular therapy sessions or visits to a psychiatrist at least twice a year.
• Can FMLA be used for paternity leave? Yes, FMLA is gender-neutral. Both parents are entitled to 12 weeks of unpaid leave for the following within the first year:
  • birth
  • adoption
  • foster placement of a child
  • for bonding with the new child
• Can an employee be fired while on FMLA? Yes, but not because of the leave. FMLA protects your employee from being fired for taking leave, but it is not a “shield” against unrelated actions. Your employee can still be laid off per the following:
  • If you eliminate the department
  • Fire for performance issues or misconduct that occurred independently of your employee’s leave
• Can an employee get their exact same job back when they get back from FMLA? Usually. Your employee is entitled to be restored to their same position or an equivalent one. An equivalent position must have nearly identical pay, benefits, and working conditions (including the same shift and location).
• How does intermittent FMLA work? It allows your employee to take leave in small blocks of time (hours or days) rather than all at once. This is common with recurring medical treatments (such as chemotherapy or physical therapy) or flare-ups of a chronic condition. Your employee only subtracts the actual time used from your 12-week total, which means you can also use it to ease your return to work.
• Does an employee need a new doctor’s note for every FMLA absence? No. Once your employee’s FMLA is approved for a specific condition, you generally cannot require a new doctor’s note for every individual absence. However, you can request “recertification” typically every 30 days (or more frequently if the circumstances of your employee leave change significantly).

Glossary:

• Americans with Disabilities Act (ADA): A landmark federal civil rights law enacted in 1990. Its primary purpose is to ensure that people with disabilities have the same rights and opportunities as everyone else.
• Business day: Any day on which normal business operations are conducted.
• Collective bargaining agreement: A written legal contract between an employer and a union representing the employees. It specifies the terms and conditions of employment, such as wages, hours, and benefits.
• Fair Labor Standards Act (FLSA): A federal law that establishes minimum wage, overtime pay eligibility, recordkeeping, and child labor standards. This affects both full-time and part-time workers.
• Family and Medical Leave Act (FMLA): A federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year. The reasons are limited to specified family and medical reasons.
• Office of Personnel Management: The federal agency that serves as the chief human resources department for the U.S. government. This manages the civil service workforce.
• Part-time work: Employment that involves fewer hours per week than a full-time job. This is commonly defined as fewer than 30–35 hours, depending on the employer’s policy.
• Payroll: The total amount of money an employer pays to its employees, as well as the process of calculating and distributing those wages and taxes.
• Paid Time Off (PTO): A policy that provides a bank of hours in which the employer pays the employee for time away from work, often combining vacation, sick, and personal days.
• Public agency: A government-owned or operated body, such as a federal department, state agency, or local municipality.
• Seasonal work: Temporary employment that occurs around the same time every year, such as holiday retail help or summer agricultural work.
• Temporary work: An employment arrangement where the job is limited to a specific period of time or until a particular project is completed.
• Uniformed Services Employment and Reemployment Rights Act (USERRA): A federal law that protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service.
• Wage and Hour Division (WHD): A division of the U.S. Department of Labor responsible for enforcing federal labor laws, including the FLSA and FMLA.
• Workers’ Compensation: A form of insurance that provides medical benefits and wage replacement to employees who are injured or become ill “in the course and scope” of their employment.