FMLA Turns 30: Let’s Get Back to Basics

For 30 years, HR professionals have been working with the Family and Medical Leave Act (FMLA), a federal law enacted to protect employees’ jobs and medical insurance when they need to take unpaid time away from work for certain family and medical reasons.

While FMLA has been around for a while, you may be new to the law because your organization has grown to the point where it only now applies to you or you’ve just had your first request from an employee for leave. Whatever your case, it never hurts to review the basics. FMLA can get pretty complicated, even for employers who have been granting and administering leave for years.

FMLA involves a lot more than job protection: there’s handling paperwork, deciding whether the medical condition qualifies, whether leave will be taken all at once or intermittently, and what happens when the employee returns. Let’s review some of the basic questions employers have about the law.

Are You a Covered Employer?

If you are an employer with 50 or more employees for at least 20 workweeks in the current or previous calendar year, you are subject to FMLA. Elementary and secondary schools are covered regardless of their employee count.

If you’re a covered employer, you are required to hang the FMLA poster at your workplace where applicants and employees can see it—even if you don’t have any eligible employees.

Which Employees Are Eligible?

An employee is an eligible employee if they:

  • Have worked for you for at least 12 months (not necessarily consecutively);
  • Have worked for you at least 1,250 hours during the 12-month period immediately before the leave; and
  • Work at a location where you have at least 50 employees within 75 miles.

Remote employees are considered to work at the worksite they report to and where their assignments are made from. An employee’s personal residence is not a worksite for purposes of FMLA.

If you have any eligible employees, you are required to provide the information on the FMLA poster in your employee handbook or by distributing a copy to each new employee upon hire.

What Can an Employee Take FMLA for?

Employees are entitled to take FMLA for the following reasons:

  • The birth of a baby and to care for their newborn 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 their job;
  • A qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty.

What Is a Serious Health Condition?

FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Both physical and mental health conditions qualify for FMLA leave.

As far as continuing treatment, you may be surprised as to what is covered, especially when it comes to conditions that require intermittent care, such as mental health like anxiety or PTSD or recurring physical ailments like migraines or infertility.
You can find forms on the platform for employees to use with their providers to determine if their condition qualifies.

How Much Time Do Employees Get?

The total time allotted is up to 12 workweeks of leave per year (or longer for military caregiver leave, explained below). You get to define what a year is. You can use:

  • Calendar year or another similarly fixed 12-month year,
  • 12 months forward from the first date the employee starts FMLA, or
  • Rolling 12 months, counting backwards from the date an employee uses FMLA.

Any of these methods are acceptable, just be sure to pick one and stick with it. If you don’t identify your FMLA year, employees are entitled to use whichever year is most favorable to them.

Intermittent leave adds additional complexity to FMLA. Employees are entitled to take FMLA intermittently or on a reduced schedule when medically necessary. You want to be sure you are consistently tracking the time your employees take that qualifies for FMLA. You can find sample tracking documents on the platform.

What Does FMLA Say About Military Family Leave?

The caregiver of a military member with a serious injury or illness may take up to 26 workweeks of unpaid leave during a single 12-month period. You’ll note that’s a longer amount of time than the standard 12 weeks.

What is Job Protection?

Job protection means an employer must return an employee who took FMLA leave to the same position they held when leave began or to an equivalent position. An employee is entitled to reinstatement even if the employee has been replaced or the position has been restructured to accommodate the employee’s absence.

An equivalent position is virtually identical to the employee’s former position in terms of pay, benefits, and other terms and conditions of employment. It must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility, and authority.

If an employee is no longer qualified for the position (for example, they couldn’t attend a necessary course or renew a license) because of the leave, the employee must be given a reasonable opportunity to become qualified again when their leave ends.

Are There Exceptions?

FMLA’s only real exception is reinstatement of a “key employee.” This is an employee who is salaried, FMLA-eligible, and among the high paid 10% of employees within 75 miles. An employer may decline to reinstate a key employee if returning them to their position (but not continued absence) would cause substantial and grievous economic injury to the employer’s operations. In this case, the employee is still entitled to take their FMLA leave and the employer has specific notice requirements. If you believe that the reinstatement may need to be denied, we recommend speaking with an attorney.

What Paperwork Is Needed?

FMLA has rather involved paperwork requirements. We’ll walk you through the paperwork for an initial leave request.

When an employee requests leave for a reason that might qualify for FMLA, the employer has five business days to provide notice about their FMLA eligibility, rights, and responsibilities. It’s worth noting that the employee doesn’t have to request FMLA leave per se, so it’s important for managers to know the types of leave requests that can trigger FMLA. If the employee isn’t eligible for FMLA, you can stop here.

If the employee is eligible, in most cases, the employer should provide a certification form and, if the leave is for the employee’s own serious health condition, the employee’s job description when they provide the notice of FMLA eligibility, rights, and responsibilities. You can require the employee to provide the requested certification within 15 calendar days after providing them the form, but would need to grant an extension if they try but can’t meet that deadline.

Once you have enough information to know that the employee’s leave is for a FMLA-qualifying reason, you have five business days to provide the employee a designation notice. This notice tells the employee whether their leave—and, if known, how much—will be counted as FMLA.

What is the Right Way to Pronounce FMLA?

We’ll refrain from staking out a definitive position on this controversial matter. Some employers pronounce FMLA “fem-la.” Others “ef-em-el-a.” Our advice is to pick one and, as always, be consistent.

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Compliance Requirements for a Remote Workforce

According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Below is our general guidance for employers.  

Logging Hours and Preparing Paychecks

Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work, and even overtime, that they aren’t being paid for. While this may seem harmless enough in the moment, particularly if the employee isn’t complaining, unpaid wages can come back to bite you once the employee is on their way out the door.

Minimum Wage

Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.


Remote employees must take all required break and rest periods required by law, as if they were in the workplace.

Harassment Prevention Considerations

You may have employees working in a state that has a lower bar for what’s considered harassment or that requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.

Remote work also comes with additional opportunities for harassment (even if it doesn’t rise to the level of illegal harassment) such as employees wearing clothing that crosses the line into inappropriate, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video. That said, going overboard with standards that you’re applying to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.

Workplace Posters

Many of the laws related to workplace posters were written decades before the internet, and so their requirements don’t always make sense given today’s technology.

The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.

Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet that employees can access. A number of newer posting laws expressly allow for electronic posting, but this option is not necessarily compliant with every posting law out there.

FMLA Eligibility

Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.

Verifying I-9s

In normal circumstances, the physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection should instead be done remotely. As of the date of this newsletter, this temporary rule is still in effect.


In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.

Deciding Who Can Work from Home

You may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.

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