HR professionals play a crucial role in ensuring compliance with the Family and Medical Leave Act’s (FMLA) leave requirements to reduce legal risks and foster an inclusive work environment. Understanding FMLA leave requirements and determining employee leave eligibility are essential for complying with this law and securing equal opportunities for all employees.

This how-to guide aims to provide employers and HR professionals with an understanding of determining employee leave eligibility under the FMLA. It explores the definitions of covered employer, eligible employee and serious health condition; provides a general overview of FMLA requirements; and outlines the process for determining an employee’s eligibility for FMLA leave. This guide will not address important FMLA-related requirements and processes that go beyond determining an employee’s eligibility, including scheduling or taking FMLA leave, fulfilling recordkeeping and notice requirements, calculating FMLA leave, maintaining an employee’s benefits and returning an employee to their job at the end of their leave.

This guide can help provide HR professionals and their organizations with the knowledge and tools necessary to confidently navigate the complexities of FMLA leave and eligibility requirements. The steps outlined in this guide can help employers establish best practices for determining whether an employee is eligible for FMLA leave. This information comes from the U.S. Department of Labor (DOL), and employers can learn more by reviewing the department’s resources on the FMLA. Employers can reference the checklists in the appendix for a step-by-step guide for complying with the FMLA and processing FMLA leave requests.

In many situations, employees may be entitled to protections under other federal laws, state and local disabilities laws, and collective bargaining agreements. Due to the complexities of complying with leave requirements, employers are encouraged to consult with local legal counsel if they have any specific questions or concerns.

Overview of the FMLA
The FMLA is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. This law was enacted so employees could deal with serious and potentially unexpected life circumstances without losing their jobs.

The FMLA applies only to “covered” employers. A covered employer may be:

  • A private sector employer;
  • A public agency, including state and federal employers; or
  • A public or private elementary and secondary school.

Covered employers must provide FMLA protections and benefits to eligible employees and comply with other responsibilities required by the law. A private sector employer is considered a covered employer by the FMLA if they employ 50 or more employees in 20 or more workweeks in the current or previous calendar year.

Eligible employees are entitled to take 12 workweeks of leave in a 12-month period for the following reasons:

  1. For the birth of a child or placement of a child with the employee for adoption or foster care and to bond with the newborn or newly placed child within one year of birth or placement;
  2. For a serious health condition that results in the employee being unable to perform their essential job functions, including incapacity due to pregnancy, and prenatal medical care;
  3. To care for the employee’s immediate family member who has a serious health condition, including incapacity due to pregnancy, and for their prenatal medical care; or
  4. For any qualifying exigency arising from the fact that the employee’s immediate family member is a military member on covered active duty or called to covered active duty status.

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.

In addition to providing eligible employees with leave for qualifying reasons, covered employers must maintain employees’ health benefits during leave and restore employees to their same or equivalent jobs after leave. The FMLA establishes employer and employee notice requirements and allows employers to require that employees certify their need for FMLA leave in certain circumstances.

Employers that do not comply with the FMLA can find themselves in difficult and costly legal situations. The DOL’s Wage and Hour Division is authorized to investigate FMLA complaints. If employer violations cannot be satisfactorily resolved, the DOL may bring court action against the employer to compel compliance. An employee may also be able to initiate a private civil action against their employer for FMLA violations, which can be particularly costly, as they may involve paying back employees’ lost wages and reinstating benefits.

How to Determine an Employee’s FMLA Eligibility

The FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. Employers can better support their workforce by recognizing situations where employees may need FMLA leave. When an employee requests or requires FMLA leave, a covered employer must determine whether an employee is eligible for leave and if the employee’s reason for leave qualifies under the law. 

The following steps outline best practices for determining whether an employee is eligible for FMLA leave as recommended by the DOL.

Step 1:
Receiving an Accommodation Request

For covered employers, their obligation to provide FMLA leave typically begins with a leave request from an employee. However, in some circumstances, an employer may become aware of an employee’s need for leave and that the leave may be for an FMLA-qualifying reason. When requesting FMLA leave for the first time, an employee is not required to mention the FMLA specifically. Additionally, a request for leave does not have to be in writing. However, the employee must provide enough information for the employer to know that the leave may be covered by the FMLA.

Employee Notice Requirements
Employees wanting to use FMLA leave must provide 30-day advance notice of the need to take FMLA leave when the need for leave is foreseeable, and notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable (e.g., either the same or the next business day). When the need for leave is not foreseeable, the employee must provide notice to their employer as soon as practicable under the facts and circumstances of the particular case. An employee generally must comply with their employer’s usual and customary notice and procedural requirements for requesting leave absent unusual circumstances.

Step 2:
Establishing FMLA Leave Eligibility

Once leave is requested, the employer should determine whether the employee is eligible to take FMLA leave. The FMLA applies only to eligible employees. To be eligible, an employee must meet all the following requirements:

  • Be employed by a covered employer;
  • Has worked for the employer for at least 12 months as of the date the FMLA leave is to start (it does not need to be consecutive);
  • Has at least 1,250 hours of service for the employer during the 12-month period before the leave; and
  • Works at a location where the employer has at least 50 employees within a 75-mile radius.

These eligibility requirements are the same for all employees, regardless of the reason for the leave request. If an employee is not eligible for FMLA leave, the employer may grant the employee leave under the organization’s leave policy, but they may not designate the leave as FMLA even if the reason for leave would otherwise qualify under the FMLA.

When establishing an employee’s eligibility for FMLA leave, an employer should ensure that the employee still has FMLA leave available if the employee has taken any FMLA-qualifying leave earlier in the year. Eligible employees are entitled to take up to 12 weeks of FMLA leave during a 12-month period (26 weeks to care for a covered service member). To make this determination, the employer should confirm which 12-month period or leave year the organization uses to calculate FMLA leave.

An employer may use the following options for the leave year:

  • The calendar year (Jan. 1 through Dec. 31);
  • Any fixed 12-month period, such as a fiscal year or a leave year beginning on the first day of an employee’s employment;
  • A 12-month period measured forward from the first date an employee takes FMLA leave; or
  • A rolling 12-month period measured backward from the date an employee uses FMLA leave.

Whatever method an employer uses, it must apply it uniformly and consistently to all employees.

Step 3:
Identifying the Qualifying Reasons for FMLA Leave

An employee who meets FMLA eligibility requirements may take up to 12 workweeks of leave in a 12-month period for FMLA-qualify reasons. The following are qualifying reasons for FMLA leave:

  1. For the birth of a child or placement of a child with the employee for adoption or foster care and to bond with the newborn or newly placed child within one year of birth or placement;
  2. For a serious health condition that results in the employee being unable to perform their essential job functions, including incapacity due to pregnancy, and prenatal medical care;
  3. To care for the employee’s immediate family member who has a serious health condition, including incapacity due to pregnancy, and for their prenatal medical care; or
  4. For any qualifying exigency arising out of the fact that the employee’s immediate family member is a military member on covered active duty or called to covered active duty status.

In addition to taking leave to address their own serious health condition, an employee can take FMLA leave due to the serious health condition of an immediate family member. Under the FMLA, an immediate family member includes the following:

Spouse—Spouse means a husband or wife as defined or recognized in the state where the employee was married, including common-law marriage, same-sex marriage or a marriage validly entered into outside of the United States. Same-sex spouses have the same leave rights as opposite-sex spouses under the FMLA.

Parent—Parent means a biological, adoptive, step- or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. A parent-in-law is not considered a “parent” for FMLA purposes.

Son or daughter—Son or daughter means a biological, adoptive or foster child, stepchild, legal ward or a child of a person standing in loco parentis who is under 18 years of age.

A parent may take FMLA leave for a child who is 18 years of age and older if the child has a disability, as defined by the Americans with Disabilities Act (ADA), at the time the leave commences, is incapable of self-care because of their disability, or has a serious health condition and needs care because of their serious health condition.

Although not required, an employer may request that an employee provide reasonable documentation to establish their qualifying family relationship. An employee may provide either a statement stating a family relationship exists or other documentation, such as a child’s birth certificate or court document. The employee chooses whether to provide a statement or other documentation. Employers cannot use a request to confirm a family relationship in a way that interferes with an employee’s exercise or attempt to exercise their FMLA rights.

In Loco Parentis
An individual stands “in loco parentis” to a child if they have day-to-day responsibilities to care for or financially support the child. The individual is not required to have a biological or legal relationship with the child. If all other requirements are met, grandparents, siblings and other relatives may stand in loco parentis to a child under the FMLA. An in loco parentis relationship exists when an individual intends to take on the role of a parent.

Serious Health Condition
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. This may include conditions that involve an inpatient hospital stay or one or more visits to a health care provider and ongoing treatment. Chronic conditions, long-term or permanent periods of incapacity, pregnancy, and certain conditions requiring multiple treatments may also meet FMLA requirements. Both physical and mental health conditions qualify for FMLA leave. However, the FMLA does not apply to routine medical examinations or common medical conditions unless complications develop.

Step 4:
Requesting Certification to Support an Employee’s Need for FMLA Leave

In certain circumstances, an employer may require that an employee submit a certification to support their need for FMLA leave. A certification is a document or form that is completed by the employee and, as appropriate, a health care provider. The certification allows employers to obtain information related to an employee’s FMLA leave request, including the likely periods of absences, and verify that the employee or their family member has a serious health condition. An employee must provide the initial certification if their employer requests it, including finding a health care provider to complete the certification and paying the costs associated with the certification. If the employee does not provide the certification, the employer may deny the employee’s request for FMLA leave.

Step 5:
Designating an Employee’s FMLA Leave

When an employee requests FMLA leave or the employer acquires knowledge that the leave may be for an FMLA purpose, the employer must notify the employee of their eligibility to take leave and their rights and responsibilities under the FMLA. When the employer has enough information to determine that the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave. Whether an employee’s leave is FMLA-qualifying must be based only on the information the employer receives from the employee. Absent extenuating circumstances, an employer must notify the employee whether the employee is eligible for FMLA leave within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for an FMLA-qualifying reason. This notice, called a designation notice, informs the employee that their requested leave will be designated as FMLA leave and establishes any requirements while the employee is on leave. A written designation notice must include:

  • The amount of leave that will count against the employee’s FMLA leave entitlement;
  • The employee’s requirement to substitute paid leave for unpaid FMLA leave, if applicable; and
  • The employee’s requirement to submit a fitness-for-duty certification to return to work.

Additionally, after an employer determines an employee is eligible for FMLA leave, the employer must provide the employee with an Eligibility Notice and a Rights and Responsibility Notice within five business days of the employee’s request for leave.

If the employee is not eligible for FMLA leave, the employer must provide the employee with at least one reason why the employee is ineligible for FMLA leave within five business days.

Summary
The FMLA is designed to provide eligible employees with essential job protection and time off for qualified medical and family reasons. Complying with this federal law can be challenging and time-consuming, especially as employees’ medical issues and treatments become more complex, and determining an employee’s eligibility for FMLA leave can often be more difficult than it initially appears. 

By understanding FMLA leave requirements, employers and HR professionals can ensure their organizations avoid potential legal pitfalls and promote inclusive and equal work environments for all employees. The steps presented in this guide can help employers better implement strategies and solutions to improve their FMLA operations and compliance efforts.