FMLA Requirements and Eligibility
Though the FMLA is fraught with potential pitfalls, few employers have the time to pour over statutes, regulations, opinion letters, and court cases to help ensure ongoing compliance.
Learn more about FMLA with our eligibility and requirement checklists below. FMLA Manager is here to help you effectively manage employee leave.
FMLA Leave Eligibility Checklist for Employers
In addition to posting general notice and educating employees on the ins and outs of FMLA, employers must be prepared for when a member of their team inevitably requests leave.
Follow the checklist below, or download our FREE infographic, to ensure you’re meeting all of your requirements under the Family Medical Leave Act.✓ Determine if the employee is eligible for FMLA. Assuming they are, let them know their scheduled leave qualifies immediately.
✓ Provide a Notice of Eligibility and Rights & Responsibilities to the employee.
✓ Determine if a medical certification is needed. If one is needed, let the employee know immediately.
✓ Determine if the leave request is for a FMLA‑qualifying reason.
✓ Grant or deny the leave request and provide a Designation Notice to the employee.
✓ Maintain health benefits for the duration of the leave.
✓ Restore the employee to the same or an equivalent position upon their return.
✓ Keep detailed notes and maintain records properly.
To qualify for FMLA leave, employees must meet at least one of the following criteria. Click on the reasons below to learn more.
Newborns require a lot of attention. Eligible employees may take FMLA leave from the birth and afterward to just be with the new, healthy child. It applies to all parents, including fathers or anyone who will stand in as a parent to the child, even if there is no legal or biological relationship.
The leave is to be taken within 12 months of the birth. This reason is rather uncomplicated, but it does not generally apply while the mother is pregnant or otherwise incapacitated – that is covered under the serious health condition provisions. This reason covers time spent solely on bonding, when no one has a serious health condition.
Eligible employees are entitled to up to 12 weeks of FMLA leave for this reason. They are not, however, automatically entitled to intermittent or reduced schedule leave for this reason; the employer would need to agree to such an arrangement. Employers may not request a certification if leave is solely for bonding with a healthy child.
J. J. Keller® FMLA Manager sets the standard for maternity leave software.
Changes to a family’s dynamic call for time and focus. Leave for adoption or foster care might require leave before the actual adoption or placement, which may be taken on an intermittent basis as needed. Court appearances, and other appointments that must take place for the adoption or placement to proceed, are included. Leave for placement applies to all parents, including fathers and those who will stand in as a parent, even without a biological or legal relationship to the child.
Like leave for birth, this leave is to be completed within 12 months of the placement. Eligible employees are entitled to up to 12 weeks of FMLA leave for placement of a child. They are not, however, automatically entitled to intermittent or reduced schedule leave for the part of the leave for bonding; the employer would need to agree to such an arrangement. Employers may not request a certification for the part of the leave that is solely for bonding with a healthy child. They may, however, request reasonable documentation of the family relationship before the bonding leave.
Sometimes, employees get sick or hurt, and when they do, they may take up to 12 weeks of FMLA leave. The condition must render the employee unable to perform his or he job functions and otherwise meet the definition of a 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. Inpatient care is generally an overnight stay in a health care facility. Continuing treatment is a bit more involved, however. It’s worth noting that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.
A serious health condition involving continuing treatment includes the following:
- A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves –
- Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
- Treatment at least once, resulting in a regimen of continuing treatment.
- Any period of incapacity due to pregnancy or for prenatal care.
- Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time. These may cause episodic rather than continuing periods of incapacity.
- A period of incapacity for a permanent or long-term condition in which treatment may not be effective.
- Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis), for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment.
An employer may request that the employee provide a certification supporting the need for leave for a serious health condition.
Employees may take up to 12 weeks of FMLA leave to care for a family member. The condition must render the family member unable to perform regular daily activities including attending school, and otherwise meet the definition of a serious health condition — the same definition that applies to an employee’s own condition.
Family members include spouses as defined by state law, but include same-sex spouses, children (biological, adopted, or foster children, a stepchildren, legal wards, or children of a person standing in loco parentis) under the age of 18 or those who are 18 or older and are incapable of self-care due to a disability; and parents (biological, adoptive, step or foster parents or any other individual who stood in as a parent to the employee when the employee was a child).
The employee must be needed to care for the family member, which can include providing psychological comfort and reassurance that is beneficial to the family member.
Employers may request that the employee provide a certification supporting the need for leave to care for a family member.
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Some employees have family members in the military, and that military duty might put urgent demands on the employee and family. Therefore, employees may take up to 12 weeks of leave when these demands arise. To do so, however, the military services must involve deployment to a foreign country. The FMLA lists which situations qualify for this “qualifying exigency” leave:
- Short-notice deployment
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements
- Rest and recuperation
- Post-deployment activities
- Parental care
- Other agreed-upon reason between employer and employee
For purposes of childcare, this is only to arrange for alternative childcare when the military duty mandates a change in the current arrangement or to provide emergency child care — this is not to be used on a regular or ongoing basis. If the employee knows of the military duty months in advance, he or she will likely have a challenge arguing that the childcare is an emergency.
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Unlike the other reasons for leave, employees may take up to 26 weeks of FMLA leave in a 12-month leave year period to care for a family member with a military-related condition. The 12 months must be operated on a measured forward basis, regardless of which method is used for the other leave reasons.
The condition is to be a serious injury or illness. For current military members, this would be one that was incurred in the line of duty or one that existed before the military duty that was aggravated by the duty. The condition may render the military family member unfit to perform the military duty.
Veterans are to be discharged under honorable conditions any time during the five-year period before the first date of FMLA leave.
To take FMLA leave for this reason, the employee must be the spouse, child, parent, or next of kin to the military family member. Next of kin includes other blood relatives.
Employees are limited to a combined total of 26 work weeks of leave for any FMLA- qualifying reasons during the single 12-month period. Up to 12 of the 26 weeks may be for an FMLA-qualifying reason other than military caregiver leave.
J. J. Keller® FMLA Manager is your go-to military leave software.
FMLA Leave Eligibility Requirements for Employees
To be eligible for FMLA benefits, an employee must:
- have worked at least 1,250 hours during the 12 months prior to the start of leave,
- have worked for the employer for at least 12 months (need not be consecutive), and
- work at a location where the employer has at least 50 or more employees within 75 miles.