This is a complete guide to FMLA, including qualifying factors, notice requirements, certification, calculating and tracking leave, employer responsibilities, and additional resources. The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave per year for family and medical reasons to eligible employees at employers with 50 or more employees. Under FMLA, employees are entitled to return to their same or an equivalent job at the end of their FMLA leave and retain their group health insurance coverage. FMLA also provides certain military family leave entitlements for eligible employees.

1. GUIDE TO FMLA

2. WHAT IS
FMLA?
The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave per year for
family and medical reasons to eligible employees at employers with 50 or more employees.
Under FMLA, employees are entitled to return to their same or an equivalent job at the end of
their FMLA leave and retain their group health insurance coverage. FMLA also provides certain
military family leave entitlements for eligible employees.
ELIGIBILITY
In order to be eligible to take leave under FMLA, an employee must:
WORK FOR
AN EMPLOYER
COVERED
UNDER FMLA
HAVE WORKED
1,250 HOURS
DURING THE 12
MONTHS PRIOR
TO THE START
OF LEAVE
WORK AT A
LOCATION WHERE
THE EMPLOYER
HAS 50 OR MORE
EMPLOYEES
WITHIN A 75-MILE
RADIUS
HAVE WORKED
FOR THE
EMPLOYER FOR
12 MONTHS,
WHICH DO NOT
HAVE TO BE
CONSECUTIVE
With regard to consecutive employment, generally, only employment in the last seven (7) years
is counted unless there is a break in service due to an employee’s military obligations or by a
collective bargaining/other written agreement.

3. According to the Department
of Labor (DOL), FMLA must
be granted to eligible
employees in a full block of
time or intermittently for the
following qualifying reasons:
QUALIFYING
FACTORS &
SERIOUS HEALTH
CONDITIONS
The birth of a child and to care for the newborn child within one year of birth.
The placement with the employee of a child for adoption or foster care and to care for the
newly placed child within one year of placement.
To care for the employee’s spouse, child, or parent who has a serious health condition.
A serious health condition that makes the employee unable to perform the essential
functions of his or her job; serious health conditions can include:
•
•
•
•
•
•
inpatient care
absence plus treatment
pregnancy and prenatal care
chronic conditions requiring treatment
permanent/long term conditions requiring supervision
conditions that require multiple treatments (non-chronic)
For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter,
or parent is on covered active duty or call to covered active duty status as a member of the
National Guard, Reserves, or Regular Armed Forces.
Employees may take FMLA leave for reasons related to certain military deployments of their
family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month
period to care for a covered service member with a serious injury or illness if the eligible
employee is the service member’s spouse, son, daughter, parent, or next of kin.

4. NOTICE
REQUIREMENTS
There are several notice requirements
under FMLA that both employers
and employees must follow to stay
compliant with the law.
EMPLOYERS
EMPLOYEES
• Must provide an eligibility notice
(“Notice of Eligibility and Rights
& Responsibilities”) to notify the
employee of their eligibility to take
FMLA leave within 5 business days
and must include a) if the employee is
eligible for FMLA or b) if not eligible
for FMLA, why they are not eligible.
• Are required to provide 30-day
advanced notice of their need to take
FMLA leave (if the need is foreseeable
and notice is practicable).
• Must provide a designation notice
(“Designation Notice”) to notify
the employee, in writing, regarding
whether leave will be designated and
counted as FMLA leave within 5
business days.
• Are required to provide notice as
soon as practicable – either same or
next business day – when leave is not
foreseeable due to lack of knowledge,
change in circumstance, or medical
emergency.
• Must comply with the employer’s usual
notice and procedural requirements
when they request FMLA leave.
• Must provide sufficient information
for the employer to determine whether
FMLA may apply to their request.
• Must comply with the employer’s
call-in procedures unless unusual
circumstances prevent them from
doing so, in which case they need to
call in as soon as practicable.

5. CERTIFICATION
PROCESS
Employers may require that FMLA leave is supported with certification
issued by a health care provider, but they need to provide employees
with at least 15 calendar days to obtain the medical certification.
The following certification forms may be used:
• Certification of Health Care Provider for
Employee's Serious Health Condition
• Certification of Health Care Provider for
Family Member's Serious Health Condition
• Certification of Qualifying Exigency for
Military Family Leave
• Certification for Serious Injury or Illness of a
Veteran for Military Caregiver Leave
If the certification is incomplete or contains
insufficient information, employers need to advise
employees, state in writing what information is
needed to complete the certification, and provide
employees with at least seven (7) calendar days
to complete the certification “unless seven days
is not practicable under particular circumstances
despite the employee’s diligent good faith efforts,”
according to the DOL.
Appropriate representatives at employers (not
including supervisors) can contact a health care
provider to authenticate or clarify the certification
RECERTIFICATION
Employers may require recertification for the leave
based on the following requirements:
Recertification may occur no more often than every
30 days in connection with the absence unless the
condition lasts for more than 30 days. For conditions
that are certified with a minimum duration of more
than 30 days, employers must wait to recertify them
until a specified period has passed.
There are three exceptions. Employers may request
recertification every six months in connection
pertaining to information within the certification
and not any additional information beyond the
form, if needed. However, if a complete and
sufficient certification has been supplied by
an employee, they may not request additional
information.
Additionally, employers, at their own expense and
including reasonable travel expenses, can require
second or third medical opinions pertaining to the
leave if they have reason to doubt the certification’s
validity. There are a few requirements pertaining to
second and third opinions, specifically:
• Employers may choose the health care provider
to provide a second opinion.
• Health care providers which employers use
on a regular basis should not be used for
certifications.
• If the second opinion differs from the first
certification, employers can require a third
certification.
• The third certification is final and is required to
be used by the employer.
with an absence by an employee. Employers can
also request a new certification for each year in
which the medical condition lasts longer than
one year. Additionally, employers may also allow
recertification in less than 30 days if…
• the employee requests an extension of leave
• the circumstances in the previous certification
changed significantly
• the employer receives information that casts
doubt on an employee’s stated reason for absence
or continued validity of the certification

6. JOB RESTORATION
INTERMITTENT LEAVE
Employees who use FMLA must be restored
to their original job or a job with equivalent
pay, benefits, and other terms of conditions of
employment. Employees cannot incur a loss of any
employment benefit as a result of using FMLA. In
addition, employees’ absences cannot be counted
against them.
Employees are allowed to take intermittent FMLA leave
via two options a) separate blocks of time for a single
qualifying reason or b) on a reduced weekly or daily work
schedule when medically necessary.
Employers can have a uniformly applied policy
or practice that requires all employees who take
leave to submit a certification from the employee’s
health care provider which states that they are
able to resume work. An employer may also
require a fitness-for-duty certification to evaluate
whether the employee has the ability to perform
the essential functions of the position. This
certification may be required up to once every 30
days for an employee taking intermittent FMLA
leave if there are reasonable safety concerns
regarding their ability to perform the essential job
functions. Employees may be delayed or denied
job restoration if they do not provide certification.
An employer may deny job restoration to a
“key employee,” who according to the DOL, is a
“salaried, FMLA-eligible employee who is among
the highest paid 10 percent of all employees
employed by the employer.” An employer must
determine if restoring the employee to their job
will result in “substantial and grievous economic
injury” to the operations. There are several other
rules pertaining to this requirement.
Employers have the right to ask employees to make a
reasonable effort to schedule their intermittent leave “so
as to not disrupt the employer’s operations, subject to the
approval of the employee’s health care provider.”
They also have the right to transfer employees to a
temporary alternative job with equivalent pay and benefits
if the other job better accommodates intermittent leave.
MILITARY LEAVE
Finally, FMLA provides that an eligible employee is entitled
to a combined total of 26 workweeks of military caregiver
leave. The eligible employee is entitled to take another 26
workweeks of leave in a different single 12 months period
to care for another service member. In addition to their
military caregiver leave the eligible employee may take
leave for any other FMLA qualifying reason in the same
single 12 month period.
A son or daughter is a covered service member’s biological
child, adopted child, foster child, stepchild, or legal ward.
Additionally, a son or daughter is covered under FMLA
regardless of their age. A parent of a covered service
member is a biological father/mother, adoptive father/
mother, step father/mother, or foster father/mother. This
provision does not include parents “in law.”

7. CALCULATING &
TRACKING LEAVE
FMLA leave can be taken in numerous increments:
whole weeks, single days, hours, and even less
than an hour. Employers are required to allow
employees to use FMLA leave in the smallest
increment of time they allow for other forms
of leave, as long as it is no more than one hour.
Employers may allow FMLA leave in shorter
increments than used for other forms of leave, but
no work can be performed during a period of time
counted as FMLA. In addition, if employers allow
leave to be used in different increments during
specific times of the day, they may use the same
increment of leave at those specific times of the
day.
The DOL lays out specific instructions for
calculating FMLA leave:
“Only the amount of leave actually taken may
be counted against an employee’s FMLA leave
entitlement. Where an employee takes FMLA leave
for less than a full workweek, the amount of FMLA
leave used is determined as a proportion of the
employee’s actual workweek. The amount of FMLA
leave taken is divided by the number of hours
the employee would have worked if the employee
had not taken leave of any kind (including FMLA
leave) to determine the proportion of the FMLA
workweek used. For example, an employee who
normally works 30 hours a week but works only 20
hours in a week because of FMLA leave would use
one-third of a week of FMLA leave. An employer
may convert the FMLA leave usage into hours
so long as it fairly reflects the employee’s actual
workweek.”
Additionally, employers may require or request
that employees use any accrued paid leave such as
PTO, sick time, vacation time, or personal time for
some or all of the FMLA leave.
Finally, employers need to calculate and track
FMLA leave. A 12-month period can be calculated
in one of four ways:
• Calendar year
• Any fixed 12-month leave (fiscal year, year
required by State law or a year starting on the
employee’s anniversary date)
• 12-month period measured forward from the
date any employee’s first FMLA leave begins
• A rolling 12-month period measured backward
from the date an employee uses FMLA leave

8. YOUR RESPONSIBILITIES
AS AN EMPLOYER
As an employer, there are a few basic obligations and responsibilities that your organization must
take to ensure that it is compliant with FMLA:
• Have a complete FMLA policy in your
handbook.
• Post FMLA notice which describes FMLA’s
provisions and make it is accessible to all
employees.
• Follow all notice and communication
requirements.
• Establish a certification and recertification
process.
• Inform employees in writing to whether or
not their leave with be designated as FMLA
protected and the amount of leave counted
against the employee’s leave entitlement.
• Provide instructions for making
arrangements for any payments of health
benefits that the employee must make
during their leave.
• Restore the employee to the same or
equivalent position with benefits.
• Provide notice of who is a “key” employee
and what that could mean.
• Be responsive to the questions that
employees have regarding their FMLA
leave.
• Establish a procedure for tracking employee
FMLA leave.
• Maintain employer provided group health
insurance for the employee.
ADDITIONAL RESOURCES
FMLA Services (Source: ERC Preferred Partner,
CareWorks USA)
FMLA Frequently Asked Questions (Source: DOL)
Family and Medical Leave Act: Overview, Fact
Sheets, Forms & Notices (Source: DOL)
FMLA Advisor (Source: DOL)
Family and Medical Leave Act Poster (Source: DOL)
FMLA Employee Guide (Source: DOL)
FMLA Employee Military Leave Guide (Source: DOL)
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified
legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute
for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

9. FMLA RESOURCES
AVAILABLE TO ERC
MEMBERS
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surveys, including our Policies and Benefits Survey with information on time off policies.
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that can help answer tough questions about topics like FMLA.
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Cost Savings
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cost savings on HR and business products and services, including outsourced FMLA
administration
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