Checklist: Determining Family and Medical Leave Act eligibility (USA)

Introduction

This checklist will assist in-house counsel, private practice lawyers, and human resource professionals with determining employee eligibility and employer obligations under the Family and Medical Leave Act (FMLA).

This checklist addresses the following steps:

1. Understand the general principles of the Family and Medical Leave Act (FMLA)
2. Consider whether the employee meets the requirements for taking leave under the FMLA
3. Ensure that the employee meets the general certification requirements
4. Consider whether the employee qualifies for military family leave
5. Ensure that the employer complies with the relevant notice requirements

This checklist can be read in conjunction with How-to guides: How to make reasonable accommodations for employees with disabilities, How to draft the key provisions of an employee handbook, and Checklist: Employer compliance with the Patient Protection and Affordable Care Act.

Step 1 – Understand the general principles of the Family and Medical Leave Act (FMLA)

Step 2 –Consider whether the employee meets the requirements for taking leave under the FMLA

Step 3 – Ensure that the employee meets the general certification requirements

Step 4 – Ensure that the employer complies with the relevant notice requirements

Step 5 – If appropriate: consider whether the employee qualifies for military family leave

Legal framework

The Family and Medical Leave Act of 1993 (FMLA) allows eligible employees of covered employers to take unpaid leave for extended periods of time to address specified family medical issues. It augments, but does not replace or amend, other federal acts, such as the Americans with Disabilities Act (42 USC 126, Section 12101 et seq) or the Rehabilitation Act (29 USC 701 et seq).

The FMLA applies only to private sector employers who employ more than 50 employees for each working day during 20 calendar workweeks in the current or preceding calendar year (covered employers). There is no requirement that the workweeks be consecutive, and if an employee works during any portion of a week, they are deemed employed for that calendar week. Public agencies and public schools are covered irrespective of their number of employees.

Key considerations

The FMLA allows eligible employees of covered employers to take 12 weeks of unpaid leave during any 12-month period because of the birth or adoption of a child, or to care for a seriously injured or ill family member. It further provides up to 26 weeks of unpaid leave for qualifying employees to care for injured family members who are veterans or seriously injured service members, and to tend to issues related to the military duty of family members, such as childcare and financial planning.

The US Department of Labor’s  (DOL) Wage and Hour Division enforces FMLA across the country. The Division's investigations begin with confidential complaints. The identity of the complainant, details of the complaint, and even the existence of a complaint are kept private. Employers are prohibited from retaliating against workers who exercise their rights, file complaints, or cooperate with investigations. Complaints can be filed here.

Step 1 – Understand the general principles of the Family and Medical Leave Act

1.1 Understand the purpose and design of the FMLA

The FMLA was intended to allow employees to balance their work with their family lives. Employees of covered employers have the opportunity to take a reasonable amount of unpaid leave for certain important family life events and family medical issues (29 CFR 825.101(a)). The leave may be taken without concern that the employee will not have a job to return to after their leave.

1.2 Understand the FMLA’s interaction with other federal laws

The FMLA does not change any provisions of other federal laws that relate to discrimination on race, religion, color, national origin, sex, age, or disability under Title VII of the Civil Rights Act of 1964. Nor does it amend the Rehabilitation Act of 1973 or the Americans with Disabilities Act of 1990. The FMLA grants rights to eligible employees but does not limit existing rights under other federal laws (29 CFR 825.702(a)).

1.3 Understand the FMLA’s interaction with state laws

The FMLA does not supersede any state law that provides more expansive coverage than the FMLA. Employees seeking leave do not need to designate which law (state or federal) they are using to take leave, but the employer must abide by the provisions of both  (29 CFR 825.701(a)). For example, Connecticut’s family and medical leave law applies to all employers with at least one employee (31 CGS 557 Sec 31-51kk) and paid leave must be provided by all employers (31 CGS 557 Sec 31-51ll).

Note that most jurisdictions require employers to provide paid or unpaid leave for other purposes, including military service, jury duty, or service in the legislature. Many jurisdictions also allow shorter periods of leave (less than one day) for purposes such as voting, or attendance at a child’s school function.

Step 2 –Understand the requirements for taking leave under the FMLA

There are several requirements that must be satisfied for an employee to be eligible for taking leave under the FMLA.

2.1 Identify the qualifying reasons for FMLA leave

The FMLA identifies six qualifying instances (29 CFR 825.112) under which a covered employer must grant leave to an eligible employee:

• birth and care of a newborn child;
• placement with the employee of a child for adoption or fostering;
• care of spouse, son, daughter, or parent with a serious health condition;
• serious health condition suffered by employee;
• qualifying exigency arising from military duty, due to the fact that the employee’s spouse, child, or parent is a military member on covered active duty, or has been notified of an impending call to active duty; and
• care of covered service member with a serious injury or illness if the employee is a spouse, child, parent, or next of kin of the covered service member.

2.1.1 Serious health conditions

A serious health condition that will allow an employee to take FMLA leave is ‘an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment’  (29 CFR 825.113).

Inpatient care

‘Inpatient care’ involves an overnight stay in a hospital or other medical care facility (29 CFR 825.114). The term includes any period of incapacity, or any subsequent treatment connected with the hospitalization.

‘Incapacity’ means an inability to work, attend school, or perform other regular daily activities because of an injury, treatment, or recovery (29 CFR 825.113(b)).

Continuing treatment

‘Continuing treatment’ includes ongoing treatments by a qualified health care provider for a serious health condition. Continuing treatment includes treatment for incapacity of more than three consecutive full calendar days, and any subsequent treatment (29 CFR 825.115).

Pregnancy

Leave for pregnancy or prenatal care may be available for both parents (29 CFR 825.120). A serious health condition that involves the need for continuing treatment includes periods of incapacity as a result of pregnancy, or for purposes of prenatal care.

Chronic conditions

A ‘chronic condition’ is a serious health condition which may require periodic visits for treatment over an extended period of time. The condition may cause episodic rather than continuous periods of incapacity. Any period of incapacity caused by a chronic condition, or treatment rendered for such incapacity, is included under the definition of a serious health condition that requires continuing treatment (29 CFR 825.115(c)).

Long-term or permanent conditions

‘Long-term conditions’ are conditions that may not require regular treatment but for which the employee or family member may require continuing supervision by a healthcare provider. Examples include dementia, stroke, or terminal illness (29 CFR 825.115(d)).

Conditions necessitating multiple treatments

‘Conditions requiring multiple treatments’ include restorative surgery or non-surgical treatments such as chemotherapy, dialysis, or physical therapy (29 CFR 825.115(e)). Periods of absence that are needed to undergo multiple treatments, and any periods of recovery thereafter, are considered serious health conditions that involve continuing treatments.

Exclusions for routine medical examinations

Under the FMLA, ‘routine’ medical examinations, eye examinations, or dental examinations, as well as regimens that consist of continuing treatments such as taking over-the-counter medication, observing bed rest, or drinking fluids, do not, by themselves, qualify as serious health issues (29 CFR 825.113(c)).

2.1.2 FMLA leave due to a serious condition of a family member

Qualifying leave can be taken only for the injury or illness of an immediate family member.The family member must be either a child, spouse, or parent of an eligible employee.

For the purposes of the FMLA, a ‘child’ includes any ‘biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis,’ who is under 18 or is 18 or older and incapable of caring from themselves. An eligible employee can therefore seek leave to care for a child who is younger than 18 years of age, but also can seek leave to care for a child 18 or older if that child is incapable of caring for themselves. It is important to note that ‘in-laws’ do not qualify as immediate family members. See the FMLA Employee Guide (page 5) issued by the Department of Labor.

A person in loco parentis ‘includes those with day-to-day responsibilities to care for and financially support a child,’ or a person who had such responsibility for the employee when the employee was a child (29 CFR 825.122(d)).

Documentation of familial relationship

An employer may request that the employee provide some sort of documentation of the familial relationship, such as a birth certificate or court order, to establish the relationship (29 CFR 825.122(k)).

2.2 Establish how much time the employer must provide to an employee on FMLA leave

An eligible employee’s FMLA leave is limited to a total of 12 workweeks during any 12-month period (29 CFR 825.200(a)). Also see Fact Sheet #28H-12: 12-month period under the Family and Medical Leave Act, issued January 2024.

If a holiday occurs during the workweek in which the employee is using FMLA and the employee would not otherwise work during that holiday, then the holiday does not count against the number of FMLA leave days to which the employee is entitled. See FMLA2023-2-A.

If leave is being sought to care for a covered servicemember who is suffering from a serious injury or illness, the eligible employee may receive a total of 26 workweeks per 12-month period (29 CFR 825.127(e)).

A ‘covered servicemember’ is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves, who is:

• undergoing medical treatment, recuperation, or therapy;
• otherwise in outpatient status;
• otherwise on the temporary disability retired list, for a serious injury or illness; or
• a covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness.

A ‘covered veteran’ is a former servicemember who was discharged under conditions other than dishonorable.

2.2.1 Calculating leave

For an employee seeking a 12-week period of leave under the FMLA, the employer may calculate the 12-month period in one of four ways (29 CFR 825.200(b)):

• calendar year;
• any fixed 12-month leave year;
• the 12-month period starting from the date the employee begins leave; or
• a rolling 12-month period measured backward from the date the employee takes the leave.

For an employee seeking a 26-week period of leave, the leave must be taken within a single 12-month period that begins on the first day the eligible employee takes leave and ends 12 months later. Any leave not taken during that 12-month period is forfeited (29 CFR 825.127(e)(1)).

2.2.2 Substitutions of paid leave

An employee eligible for paid leave may substitute paid leave, such as sick leave or vacation time, for unpaid leave under the FMLA if he or she is eligible for paid leave under the employer’s rules (29 CFR 825.207(a)). The employer also may require the employee to substitute any accrued paid leave for which he or she is eligible for unpaid FMLA leave. The term ‘substitute’ means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave. If neither the employer nor the employee opts for the employee to use paid leave, then that paid leave is not forfeited.

2.3 Understand the rules for scheduling FMLA leave

An eligible employee must provide 30 days’ notice of his or her intention to take 12 weeks of leave (29 CFR 825.302(a)). If there are circumstances that make this notice impossible (eg, a sudden health emergency), the employee must notify the employer as soon as practicable.

2.3.1 Reduced schedule or intermittent leave

An eligible employee may take a reduced schedule or intermittent leave for medical necessities if that medical need can be best accommodated through such leave (29 CFR 825.202). Intermittent leave may be used after the birth of a healthy baby only if the employer agrees (29 CFR 825.120(b)). Similarly, an eligible employee may use intermittent leave after the placement of a healthy child with the employee for fostering or adoption only if the employer agrees (29 CFR 825.121(b)).

2.3.2 Spouses employed by the same employer

Spouses who work for the same employer may be limited to 12 weeks of leave during a 12-month period shared between them if leave is taken for birth of a child, to take care of a child who is being adopted or fostered, or to take care of parents with a serious health issue (29 CFR 825.120(a)(3)).

2.3.3 Special rules for airline flight crews

Special rules apply to airline flight crews. A flight crew member may be eligible for 12 weeks of leave during a 12-month period if they have worked or been paid for no less than 60% of their applicable monthly guarantee and have worked no less than 504 hours in the previous 12-month period (29 CFR 825.801(d)). The applicable monthly guarantee refers to the minimum number of hours the employer agreed to schedule the employee (if the employee is not on reserve status) or agreed to pay the employee (if the employee is on reserve status) (Fact Sheet #28J: Special Rules for Airline Flight Crew Employees under the Family and Medical Leave Act).

2.3.4 Remote workers are eligible for FMLA leave on the same basis as non-remote workers

On February 9, 2023, the DOL issued Field Assistance Bulletin No. 2023-1. The Bulletin states that employees who work remotely are eligible for FMLA leave on the same basis as onsite employees.

2.4 Ensure the employer maintains health plan benefits

2.4.1 Continuation of health plan benefits

During an FMLA leave period, the employer must maintain any group health plan benefits for the eligible employee (29 CFR 825.209(a)). This requirement applies to any changes or increases in health benefits that the employer extends to other employees during the leave period.

An employer under a multi-employer plan (such as a union-sponsored plan) must continue to make contributions on behalf of an eligible employee who is taking qualified leave (29 CFR 825.211(b)).

2.4.2 Employee obligations

An eligible employee on unpaid FMLA leave must continue to pay any health plan premiums or other costs during leave that they would have had to pay while in work (29 CFR 825.210(a)).

2.5 Understand the relationship between the FMLA and state paid family medical leave programs

Employers in the US face a complex web of laws governing time off for family and medical reasons, particularly when state paid family and medical leave (PFML) laws overlap with the FMLA. A key issue has been whether employers can require employees to use their accrued paid time off, like vacation time, while they are also receiving pay from a state or local PFML program. On January 14, 2025, the Wage and Hour Division (WHD) of DOL issued an opinion letter clarifying that employers cannot mandate that employees use their employer-provided paid leave in this situation.  

The DOL's guidance specifies that the same rules that apply to paid leave programs based on employees’ disability or workers’ compensation claims also apply to state and local PFML programs. An employer cannot force an employee to use their own paid leave when they are already being compensated through a state program, such as workers’ compensation or disability. This is true even if the compensation from the state program does not fully replace the employee’s regular pay. In that case, an employee and employer may agree to supplement the state benefits with employer-provided paid leave, but the employer cannot require it.  

The opinion letter also provides guidance on how to properly designate leave that is covered by both the FMLA and a state PFML program. The leave must be designated expressly as FMLA leave, and the employee must be given notification of this designation. If the state's PFML program ends before the employee has exhausted their full leave under the FMLA, the FMLA substitution rules would then apply. The employer could require the employee to use their accrued paid leave for the remaining leave allowed under the FMLA. This clarification provides a much-needed framework for employers navigating these overlapping laws.
 

Step 3 –Understand the general certification requirements

3.1 Consider requiring the employee to provide certification for FMLA leave

The employer has the right to require an eligible employee to submit some form of certification (29 CFR 825.100(d)) to substantiate that the requested leave is either due to a serious health condition of the employee, a serious injury or illness of a family member or covered service member, or a qualifying exigency.

3.2 Consider requesting medical certification from a health care provider

An employer is not required to request that the employee provide medical certification (29 CFR825.306(a)), but if the employer opts to do so, they may request the following information from a health care provider:

• name and information about the provider;
• approximate date the employee’s illness began and its likely duration;
• a statement describing the appropriate medical facts of the employee’s condition;
• information sufficient to establish that any outpatient employee is unable to work, as well as information on the nature of any work restrictions;
• if the patient is covered family member, information sufficient to establish that the family member is in need of care;
• if intermittent leave is requested, information sufficient to establish the medical necessity of the revised work schedule for the employee; and
• a statement that intermittent leave is necessary if the patient is a family member.

The Department of Labor provides Form WH-380E and Form WH-380F for certification. These forms are optional and allow the health care provider to furnish the required certification information. Form WH-380E is for use when the employee is requesting leave for his or her own serious health condition, and WH-380F is for use when the employee is requesting leave to care for a family member.

3.3 Ensure the appropriate and necessary facts are included in the certification

The employer is entitled to receive the contact information for the health care provider who is certifying the employee’s need for leave (29 CFR 825.306).

The employer should also learn whether there are any limitations on the employee’s ability to work. If a reduced schedule or intermittent leave is requested, certification should cover whether the employee is capable of working on a reduced schedule (29 CFR 825.312).

3.4 Check the employee has submitted the certification in good time

If the employer requires certification, the employee must provide it within 30 days (29 CFR 825.304). If the employer chooses to waive the notice obligations, there is no deadline for certification. When certification is required by the employer, failure to provide the certification in a timely manner by the eligible employee may lead to a delay in beginning the leave period (29 CFR 825.304).

3.4.1 Authentication and clarification

If an employee provides the necessary information in the original certification, the employer may not request additional information from the health care provider, but the employer may contact the health care provider for the purposes of clarification and authentication of the medical certification (29 CFR 825.307(a)).

3.4.2 Recertification

If an employee is on leave under the FMLA, an employer may request recertification that shows that the employee remains eligible. Recertification may not be requested more frequently than every 30 days. Recertification may be requested more often only if:

• the employee requests an extension of leave;
• circumstances have changed significantly regarding the qualifying illness or injury; or
• the employer receives information that casts doubt on the stated reason for the leave (29 CFR 825.308).

If an employee’s need for leave extends beyond a single leave year, the employer may require the employee to provide a new medical certification for each year (29 CFR 825.305(e)).

Step 4 – Ensure the employer complies with the relevant notice requirements

4.1 Check the employer has provided the employee with the necessary designation notices

The employer is responsible for designating leave as being FMLA-qualified or not (29 CFR 825.300(d)). The employer must give the employee a designation notice if the leave will be counted as FMLA leave within five business days of obtaining the necessary information from the employee. The notice must be in writing, and the employer must inform the employee how much leave will be counted against the employee’s FMLA entitlement.

4.2 Establish whether the employer requires fitness-for-duty certifications

An employer may require a fitness-for-duty certificate for an employee who is on leave for illness or injury in order for the employee to return to work (29 CFR 825.300(d)(3)). If the employer requires such a certification, the employer must give notice of that requirement when they provide the designation notice.

4.3 Check the employer has given the employee an opportunity to cure incomplete or insufficient certifications

If a certification requested by the employer is incomplete or insufficient (see 29 CFR 825.305(c)), the employer must notify the employee of this fact. The employee will have seven calendar days to cure any deficiency.

4.4 Consider whether to retroactively designate FMLA leave

An employer may retroactively designate leave as FMLA leave with appropriate notice to the employee, as long as the failure to designate does not cause the employee any harm (29 CFR 825.301(d)).

4.5 Consider the options at the end of the FMLA leave

If an employee fails to return to work because of continued illness, the employer is entitled to seek an additional certification of the employee’s illness or injury (29 CFR 825.213(a)). If the failure to return to work is the employee’s own choice (rather than being due to illness or injury), the employer is entitled to seek to recoup any money the employer devoted to the employee’s health care premiums during the time of the leave.

4.5.1 Reinstatement

When the employee returns from leave, he or she is entitled to return to the same position, or to an equivalent position to the one that they held prior to the leave beginning (29 CFR 825.214) with equivalent benefits, pay, and other terms of employment.

4.5.2 Limitations on reinstatement

If an employee has requested reinstatement at the end of a period of leave but that employee would otherwise have been laid off or terminated if he or she had not taken leave, it is the burden of the employer to establish that the employee would have been laid off or terminated and is therefore not eligible for reinstatement (29 CFR 825.216(a)). If the employer does not establish that the employee would have been laid off or terminated, the employee is entitled to be reinstated in line with 5.5.1 above.

4.6 Ensure the employer maintains appropriate records

Employers are required to keep and preserve records pertaining to their obligations under the FMLA (29 CFR 825.500). No particular forms are required, but employers must keep all records for no less than three years and have them available for inspection by the Department of Labor during that time.

Step 5 – Consider whether the employee qualifies for military family leave

5.1 Be aware of the types of military leave available under the FMLA

There are two different types of military leave available under the FMLA.

5.1.1 Qualifying exigency leave

‘Qualifying exigency leave’ allows eligible employees of a covered employer to take unpaid leave for any qualifying exigency arising from the status as a military member on active duty or call to covered active duty status of an employee’s son, daughter, spouse, or parent (29 CFR 825.100(a)). According to the Department of Labor, a ‘qualifying exigency’ may arise in relation to an employee’s spouse, son, daughter, or parent who is a member of the Armed Forces (including the National Guard and Reserves) and who is on covered active duty or has been notified of an impending call or order to covered active duty (Fact Sheet #28M(c): Qualifying Exigency Leave under the Family and Medical Leave Act). Covered active duty means that a member of the regular Armed Forces is deployed overseas and, in the case of a member of a Reserve Component (National Guard or Reserves), that Reserve member is deployed under Title 10 of the US Code (29 CFR 825.102).

5.1.2 Military caregiver leave

Eligible employees are also entitled to leave under the FMLA to care for a covered servicemember who has suffered a serious illness or injury (29 CFR 825.127).

5.2 Establish whether the employee is eligible for qualifying exigency leave

5.2.1 Covered active duty requirement

The active duty requirement covers all service members on active military duty and all Reserve Component servicemembers in the Army Reserve, National Guard, Air National Guard, Air Force Reserve, Naval Reserve, and Marine Corps Reserve (29 CFR 825.126(a)(2)(1)). The servicemember will have written orders verifying his or her status.

5.2.2 Categories of qualifying exigency leave

Eligible employees may take leave under the FMLA if an issue arises from a short-notice deployment or from the need to attend a military event such an official ceremony (29 CFR 825.126(b)(2)). Eligible employees may also take leave to care for the child of a military member, make financial arrangements for the military member, or to attend counseling with the military member or child.

5.3 Establish whether the employee is eligible for military caregiver leave

Leave is available to care for current servicemembers or covered veterans (covered servicemembers) (29 CFR 825.102). A current servicemember is a member of the Armed Forces, including members of the National Guard or Reserve, who currently is under orders and is undergoing outpatient treatment or is on the temporary disability retired list for a serious injury or illness.

An eligible veteran is an individual who has been discharged (under other than dishonorable conditions) from the Armed Forces in the five years prior to the period when the eligible employee takes leave under the FMLA. An eligible employee may begin care of a veteran within five years of discharge.

5.3.1 ‘Single 12-month period’ requirement

An eligible employee is entitled to 26 workweeks of leave to care for a covered service member during a single 12-month period (29 CFR 825.127(e)). The 12-month period begins on the first day of the leave.

5.4 Understand the military FMLA certification requirements

An employer may ask the employee for a copy of the military orders of the service member who is on covered active duty (29 CFR 825.309(a)).

When leave is requested to care for a servicemember, the employer may seek and obtain certification from the health care provider of the covered servicemember (29 CFR 825.310). This provider might be a Department of Defense provider, a Veterans Administration provider, a Department of Defense TriCare or non-network TriCare provider, or other such provider.

Additional resources

US Department of Labor: Family and Medical Leave Act
Bipartisan Policy Center, Modernizing FMLA: Reform Options to Expand Employee Coverage and Reduce Employer Burdens (July 2022)

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