FMLA, the Family and Medical Leave Act, gives eligible US employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for set family and medical reasons. Their employer has to keep their group health cover going on the same terms and give them the same or an equivalent job when they come back.
It's a federal law, so it applies in every state, but it doesn't apply to every employer or every employee. Small businesses in particular get this wrong both ways: some assume they're covered when they're not, and some assume a part-timer can't qualify when they can. Here's how the Department of Labor sets it out.
Which employers are covered by FMLA
The Department of Labor's Fact Sheet #28 lists three groups of covered employers:
- Private-sector employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year
- Public agencies, including federal, state and local government employers, regardless of how many people they employ
- Local educational agencies, including public school boards and public and private elementary and secondary schools, regardless of size
So a private business with 30 staff isn't covered by the federal law at all. That's not the end of the story, though, because the DOL also says some states have their own family and medical leave laws, and nothing in FMLA stops employees getting the protection of those. Always check your state labor department as well.
Which employees qualify
Working for a covered employer isn't enough on its own. The employee has to meet all three of these tests:
| Test | What the DOL requires |
|---|---|
| Length of service | At least 12 months with the employer |
| Hours worked | At least 1,250 hours of service in the 12 months before the leave starts |
| Location | Works at a location where the employer has at least 50 employees within 75 miles |
This is the insight most owners miss: the 50-employee count is about the site, not the whole company. A business with 60 staff spread across offices hundreds of miles apart can be a covered employer and still have employees at a small branch who don't qualify, because there aren't 50 people within 75 miles of where they work.
What FMLA leave can be used for
- The birth of a child, or a child placed with the employee for adoption or foster care
- Caring for a child, spouse or parent with a serious health condition
- The employee's own serious health condition that stops them working
- Qualifying exigency leave linked to a family member's foreign military deployment
- Military caregiver leave for a family member who's a current servicemember or recent veteran with a serious injury or illness
The standard entitlement is up to 12 workweeks in a 12-month period. Military caregiver leave is the exception: up to 26 workweeks in a single 12-month period.
How much leave a part-timer gets
The leave is counted in workweeks, so it follows the employee's normal schedule. The DOL's own examples make this clear: someone who works 32 hours a week can use up to 32 hours of FMLA leave a week for 12 weeks, while a cook on 50 hours a week can use up to 50 hours a week.
Leave doesn't have to be taken in one block either. When it's medically necessary, employees can take it intermittently or on a reduced schedule, even an hour or two for a therapy appointment. The one limit is bonding leave for a new child: that can only be taken intermittently if the employer agrees.
Is FMLA leave paid?
No. The DOL calls it job-protected, unpaid leave. Employees can use employer-provided paid leave at the same time if the reason is covered by your paid leave policy, and an employer can also require them to use their paid leave during FMLA leave. If your handbook doesn't say which way you run it, decide now, before the first request lands.
Time off after a death is covered in our bereavement leave guide.
What employers must do
| Duty | What it means in practice |
|---|---|
| Keep health cover going | Group health insurance continues on the same terms, including family cover if the employee had it |
| Restore the job | The same job, or an equivalent one with the same pay, benefits and other terms |
| Allow time for certification | If you ask for information from the health care provider, you must allow 15 calendar days to provide it |
| No retaliation | You can't threaten, punish, suspend or fire someone for asking for or using FMLA leave |
The DOL is specific about what counts as a violation. Cutting the number of shifts, moving someone outside their normal commuting area, denying a bonus they'd already earned, writing them up for missing work while on FMLA leave, or giving them negative attendance points can all breach their rights.
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Employees don't have to say the words FMLA. They just need to give you enough information that the leave may be covered, as soon as it's practical. So a manager who hears about a scheduled operation has effectively had notice. Train your managers on that one point and you'll avoid most disputes. A decent leave and absence management tool helps you track the 12 weeks without spreadsheets.
Enforcement and complaints
The Wage and Hour Division administers and enforces FMLA for most employees. An employee who thinks their rights were broken can file a complaint with the Wage and Hour Division or bring a private lawsuit in court. The law also requires covered employers to display the FMLA poster, which the DOL provides free.
Health cover during leave is a related question, answered in our COBRA guide.
My verdict
If you have fewer than 50 employees, the federal law probably doesn't apply to you, but your state's leave law might, so check before you say no to anyone. If you're over 50, put the three eligibility tests, the 12-week count and your paid leave rule in writing, and make sure health cover keeps running. Most FMLA claims start with a manager who didn't realise a conversation counted as notice. You can also tidy up how benefits run alongside leave with benefits administration software.
Frequently asked questions
What does FMLA stand for?
FMLA stands for the Family and Medical Leave Act, the federal law that gives eligible employees unpaid, job-protected leave for qualifying family and medical reasons.
How many employees does a business need for FMLA to apply?
Private-sector employers are covered if they have 50 or more employees in 20 or more workweeks in the current or previous calendar year. Public agencies and schools are covered regardless of size.
How long do you have to work somewhere to qualify for FMLA?
At least 12 months, with at least 1,250 hours of service in the 12 months before the leave starts, at a location with at least 50 employees within 75 miles.
Is FMLA leave paid?
No. FMLA leave is unpaid, but employees can use employer-provided paid leave at the same time, and employers can require them to.
How many weeks of FMLA leave can you take?
Up to 12 workweeks in a 12-month period, or up to 26 workweeks in a single 12-month period for military caregiver leave.
Can FMLA leave be taken a few hours at a time?
Yes, when medically necessary it can be taken intermittently or on a reduced schedule. Bonding leave for a new child can only be taken that way if the employer agrees.
