FMLA eligibility: does federal leave protect this absence?

Check if US federal FMLA covers a leave request: employer size, 12 months, 1,250 hours, 50 employees within 75 miles, and qualifying reasons.

FMLA eligibility: does federal leave protect this absence?EmployeeHRIS THE EMPLOYER COVERED?IS THE EMPLOYEE ELIGIBLE?DOES THE REASON QUALIFY?NOTICESYesNoNoYesNoYesNoYesNoYesBirth or new childOwn healthFamily memberMilitary familySomething elseYesNoEmployee asks for leaveCheck whether federal FMLAprotects this leave: employercoverage, then employee eligibility,then the reason for leave.FMLA is a US federal law. Manystates have their own family leavelaws that can give more. Check thosetoo.Tell HR the dates and thereasonGive 30 days' notice when the leaveis foreseeable, such as a plannedbirth or surgery. Otherwise givenotice as soon as practicable.You don't need to say "FMLA". Sayingenough for HR to see that it mightqualify is enough.Is the employer apublic agency or aschool?Employer is coveredregardless of sizeFederal, state and local governmentemployers and public and privateelementary and secondary schoolsare covered at any size.50+ employees in 20+workweeks this year or lastyear?Count every employee on the payrollfor each working day of the week,including part-time staff and peopleon leave.FMLA doesn't apply. Checkstate leave lawEmployer is coveredWorked here at least 12months in total?The 12 months don't have to be in arow. Time before a break in service of7 years or more usually doesn'tcount.Not eligible yet. Check statelaw and company policyWorked 1,250+ hours in the 12months before leave starts?Count hours actually worked, underthe Fair Labor Standards Act. Paidtime off and unpaid leave don'tcount.1,250 hours is about 24 hours a weekacross a full year. Airline flight crewshave a separate test.Not eligible yet. Check statelaw and company policy50+ employees within 75miles of the worksite?Measure by road miles. Count at thedate the employee asks for leave.Later drops in headcount don'tchange eligibility for that leave.Not eligible under FMLA.Check state lawEmployee is eligibleWhat is the leavefor?Bonding with a newborn or anewly placed adopted orfoster childLeave for bonding must end within 12months of the birth or placement.Employee's own serioushealth conditionThe condition must make theemployee unable to do the job.Care for a spouse, child orparent with a serious healthconditionQualifying exigency or carefor a servicememberCaring for a covered servicememberwith a serious injury or illness allowsup to 26 workweeks in a single12-month period.Not FMLA leave. Usecompany leave policyHas the employee usedFMLA leave in the current12-month period?The employer picks how the12-month period is measured, forexample a calendar year or a rollingperiod back from the leave date.Subtract leave already usedfrom the 12-week entitlementFull 12 workweeks availableSend the eligibility noticewithin 5 business daysSend the rights and responsibilitiesnotice with it. DOL form WH-381combines the eligibility notice andthe rights and responsibilities notice.Ask for medical certificationif neededGive the employee at least 15calendar days to return thecertification.Send the designation noticewithin 5 business days ofhaving enough informationThe designation notice is DOL formWH-382. It says whether the leavecounts as FMLA leave and how muchleave is counted.Leave is protected underFMLA

Is the employer covered?

  1. Employee asks for leaveEmployee

    Check whether federal FMLA protects this leave: employer coverage, then employee eligibility, then the reason for leave.

    FMLA is a US federal law. Many states have their own family leave laws that can give more. Check those too.

  2. Tell HR the dates and the reasonEmployee

    Give 30 days' notice when the leave is foreseeable, such as a planned birth or surgery. Otherwise give notice as soon as practicable.

    You don't need to say "FMLA". Saying enough for HR to see that it might qualify is enough.

  3. Is the employer a public agency or a school?HR
  4. Employer is covered regardless of sizeHR

    Federal, state and local government employers and public and private elementary and secondary schools are covered at any size.

    Then go to step 8, Worked here at least 12 months in total?

  5. 50+ employees in 20+ workweeks this year or last year?HR

    Count every employee on the payroll for each working day of the week, including part-time staff and people on leave.

  6. FMLA doesn't apply. Check state leave lawHR
  7. Employer is coveredHR

Is the employee eligible?

  1. Worked here at least 12 months in total?HR

    The 12 months don't have to be in a row. Time before a break in service of 7 years or more usually doesn't count.

  2. Not eligible yet. Check state law and company policyHR
  3. Worked 1,250+ hours in the 12 months before leave starts?HR

    Count hours actually worked, under the Fair Labor Standards Act. Paid time off and unpaid leave don't count.

    1,250 hours is about 24 hours a week across a full year. Airline flight crews have a separate test.

  4. Not eligible yet. Check state law and company policyHR
  5. 50+ employees within 75 miles of the worksite?HR

    Measure by road miles. Count at the date the employee asks for leave. Later drops in headcount don't change eligibility for that leave.

  6. Not eligible under FMLA. Check state lawHR
  7. Employee is eligibleHR

Does the reason qualify?

  1. What is the leave for?HR
  2. Bonding with a newborn or a newly placed adopted or foster childHR

    Leave for bonding must end within 12 months of the birth or placement.

    Then go to step 21, Has the employee used FMLA leave in the current 12-month period?

  3. Employee's own serious health conditionHR

    The condition must make the employee unable to do the job.

    Then go to step 21, Has the employee used FMLA leave in the current 12-month period?

  4. Care for a spouse, child or parent with a serious health conditionHR

    Then go to step 21, Has the employee used FMLA leave in the current 12-month period?

  5. Qualifying exigency or care for a servicememberHR

    Caring for a covered servicemember with a serious injury or illness allows up to 26 workweeks in a single 12-month period.

    Then go to step 21, Has the employee used FMLA leave in the current 12-month period?

  6. Not FMLA leave. Use company leave policyHR
  7. Has the employee used FMLA leave in the current 12-month period?HR

    The employer picks how the 12-month period is measured, for example a calendar year or a rolling period back from the leave date.

  8. Subtract leave already used from the 12-week entitlementHR

    Then go to step 24, Send the eligibility notice within 5 business days

  9. Full 12 workweeks availableHR

Notices

  1. Send the eligibility notice within 5 business daysHR

    Send the rights and responsibilities notice with it. DOL form WH-381 combines the eligibility notice and the rights and responsibilities notice.

  2. Ask for medical certification if neededHR

    Give the employee at least 15 calendar days to return the certification.

  3. Send the designation notice within 5 business days of having enough informationHR

    The designation notice is DOL form WH-382. It says whether the leave counts as FMLA leave and how much leave is counted.

  4. Leave is protected under FMLAHR

Outcomes

FMLA doesn't apply. Check state leave law

You get here from step 5, 50+ employees in 20+ workweeks this year or last year? (No).

Not eligible yet. Check state law and company policy

You get here from step 8, Worked here at least 12 months in total? (No).

Not eligible yet. Check state law and company policy

You get here from step 10, Worked 1,250+ hours in the 12 months before leave starts? (No).

Not eligible under FMLA. Check state law

You get here from step 12, 50+ employees within 75 miles of the worksite? (No).

Not FMLA leave. Use company leave policy

You get here from step 15, What is the leave for? (Something else).

Leave is protected under FMLA

You get here from step 26, Send the designation notice within 5 business days of having enough information.