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FMLA: What is it and does your employee qualify?

By Cara Kelley, CLMS, HR Consultant, East Coast Risk Management

The Family and Medical Leave Act (FMLA) is an employment law enforced by the U.S. Department of Labor (DOL) that requires covered employers to provide up to 12 weeks of unpaid, job-protected leave in a 12-month period for an eligible employee’s serious health condition or for the employee to care for an immediate family member who is battling a serious health condition. Up to 26 weeks may be available to an eligible employee caring for a covered servicemember with a serious injury or illness. The law also guarantees continuation of group health benefits while the employee is on FMLA leave.

The FMLA helps millions of employees each year by ensuring their job security and benefits while on leave. However, properly administering these leaves presents a significant challenge to employers since the law requires specific notifications and precise timing. Employers who have missed a step or mishandled an employee’s need for FMLA have paid stiff penalties.

In 2019, for example, a decision from the highest court in Massachusetts reminded employers that even a genuine misunderstanding of this complex law will not protect an employer who mishandled a leave. In the case of DaPrato v. Massachusetts Water Resources Authority, Mass. Sup. Ct., No. SJC-12651 (June 5, 2019), a judge awarded $1.3 million in damages to an employee who was terminated for taking a vacation while on FMLA leave. At trial, the HR director testified to her belief that an employee on FMLA leave was not permitted to take a vacation. However, the court explained that the employer should have considered the reasons for the medical leave and the activities undertaken while on leave, including the timeline for rehabilitation and recovery. In this case, the location of the employee was not relevant. The court went on to conclude that the employer, though honest in its belief that it was complying with the law, was not reasonable in its belief, further emphasizing the need for careful review and consideration of all medical certifications.

Given the risks, let’s review some of the basics.

What is a covered employer?

According to the DOL, FMLA applies to private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. In addition, public agencies, as well as public and private elementary and secondary schools, are covered employers without regard to the number of employees employed.  If you are a covered employer, you must post the DOL’s notice that addresses the basics of this complex law.

What type of absences are protected by the FMLA?

The FMLA protects a variety of absences related to a serious medical condition or family need. Employers covered by FMLA must be on the lookout for these situations:

  • An eligible employee with a serious health condition. This may include any illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that prevents the employee from performing the functions of their job.
  • An eligible employee caring for an immediate family member with a serious health condition that prevents them from participating in work, school, or other daily activities.
  • The birth or adoption of a child, or the placement of a child for foster care.
  • An eligible employee’s need to respond to an urgent situation arising out of an immediate family member’s active duty or call to active duty (deployment to a foreign country) in the National Guard, Reserves or Regular Armed Forces (qualifying exigencies).
  • An eligible employee’s need to care for an immediate family member who has incurred a serious injury or illness while on active duty in the Armed Forces, including a veteran discharged within past five years (this is a 26-week leave).
  • An eligible employee’s need to attend to an immediate family member who is on “rest and recuperation” from military service (this is a 15-day leave).

What are the eligibility requirements?

  • The employee must have been employed by the company for at least 12 months. (These 12 months do not have to be consecutive, as long as they were within the previous 7 years.)
  • The employee must have worked 1,250 hours within the 12 months immediately preceding the start of the requested leave.
  • The employee must work at a worksite where at least 50 employees are employed by the company within a 75-mile radius.
  • Employees in the top 10 percent of the company’s pay scale (key employees) may be excluded.

How do eligible employees apply for FMLA?

Employees must notify the employer of their need to take leave and should give the employer at least 30 days advance notice, when possible. A request for leave can be verbal or written.  But a quick word of warning: whether an employee specifically requests FMLA or not, it is the employer’s legal obligation to determine if FMLA might be applicable and to send the required notices. That includes notifying the employee whether they are eligible for FMLA leave within 5 business days of learning of the need for leave.

The DOL has provided several forms to help employers fulfill their obligation. All of the forms listed here are available for free downloading on the DOL’s website.

  • Form WH-381 (Notice of Eligibility & Rights and Responsibilities). This form can be used to help employees determine if they are eligible for FMLA. Employers must provide such information within five business days of the employee’s notification of the need for FMLA leave.
  • Forms WH-380-E and WH-380-F (Certifications of Health Care Provider). These forms can be used to gather the information needed from your employee’s health care provider, or the health care provider of your employee’s family member. You must give employees at least 15 days to return this completed certification.
  • WH-382 (Designation Notice). This notice provides employees with the information required by the law. They must be notified if their leave qualifies as FMLA within five business days of the employer having enough information to make that determination.

If you think you might be a covered employer, do not let these details overwhelm you. We have a team of skilled professionals currently administering FMLA and other leaves of absence for our clients.  If you have questions about FMLA or other leaves of absence, or if you would like more information about how our team can help administer your leaves of absence, please e-mail us at We can help!

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.