FMLA Checklist for Employers

The Family and Medical Leave Act (FMLA) covers private employers with 50 or more workers in a 75-mile radius, along with all public agencies and schools. FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave in a year, while continuing health benefits and protecting the employee’s job. An employee qualifies if they work for a covered employer, have at least 12 months of service, and have logged 1,250 hours in the past year.

Employers can run into trouble when they misjudge whether an employee qualifies for leave or don’t send the required notices on time. A checklist gives employers a way to track leave step by step, avoid disputes with employees, and limit the chance of enforcement action from the Department of Labor.

The following steps can serve as a checklist to be sure you stay compliant.

1. Verify Employer and Employee Eligibility

Before granting FMLA leave, an employer has to confirm two things: that the business is covered by the law and that the employee meets the eligibility rules. If either condition is not met, the request is outside FMLA.

Employer Coverage

Private employers are covered by FMLA if they have 50 or more employees within a 75-mile radius. All public agencies and all public and private elementary or secondary schools are covered regardless of size.

Employee Eligibility

An employee qualifies if they have at least 12 months of service, worked 1,250 hours in the prior 12 months, and are employed at a location where the employer has at least 50 employees within 75 miles. Public agencies and schools are exceptions, since their workers are covered regardless of headcount. The 12 months do not need to be consecutive; earlier periods of employment may count if the break in service was less than seven years.

Risks of Getting Eligibility Wrong

Employers that misjudge coverage or employee eligibility risk problems in two directions. Granting leave when the law does not apply can disrupt operations and create resentment among other employees who see benefits being extended inconsistently. Denying leave that is protected under FMLA can expose the employer to claims of interference or retaliation, back pay liability, and investigation by the Department of Labor.

2. Identify Covered Reasons for Leave

FMLA protections only apply when an employee’s reason for requesting leave falls within one of the categories defined by the law. The employer’s role is to look at the facts of the request and any supporting documentation to determine whether the request qualifies.

Qualifying Reasons

An employee’s request qualifies for FMLA protection when it is for:

Birth of a child and care for that child within the first year.
Adoption or foster care placement, including leave related to counseling, court proceedings, or travel.
The employee’s own serious health condition, which can mean inpatient care, incapacity of more than three consecutive days for follow-up treatment, or a chronic condition that requires periodic medical visits.
Care for a spouse, child, or parent with a serious health condition.
Military family leave, which includes qualifying exigencies related to active duty and up to 26 weeks to care for a covered servicemember with a serious injury or illness.

Risks of Misjudging Leave Reasons

Employers that approve FMLA leave for reasons not recognized by the law create staffing shortages and set expectations that future requests outside the law will also be granted. Employers that deny leave for a qualifying reason face claims of FMLA interference, liability for back pay, and potential Department of Labor enforcement. Denying leave that qualifies can trigger interference claims that expose the company to back pay awards, benefit restoration, attorney fees, and a Department of Labor investigation that may expand beyond the single case.

3. Determine How Leave Will Be Taken

Once eligibility and the qualifying reason are clear, the law dictates how the leave may be taken. The employee’s circumstances determine whether it runs as a single block, in separate periods, or on a reduced schedule. The employer’s role is to administer and track the leave, and in certain cases (like bonding with a new child) to agree to the schedule. Each format brings different challenges for staffing and for calculating the employee’s remaining entitlement.

Continuous Leave

An employee may take up to 12 weeks of leave in a single, uninterrupted block. Employers generally find this option easiest to manage because the period is scheduled in advance and does not require detailed hourly calculations.

Intermittent Leave

FMLA allows employees to take leave in smaller segments, usually for treatment of a health condition or recurring medical appointments. When this happens, employers need to track each of those absences and count them against the 12-week limit, which works best when the total entitlement is converted into hours and partial absences are subtracted as they occur.

Reduced Schedule Leave

FMLA requires employers to allow a reduced schedule when a health condition renders it medically necessary, which can mean shorter workdays or fewer days each week. For bonding with a newborn or a newly placed child, a reduced schedule is permitted only if the employer agrees. Employers then have to adjust staffing and keep detailed records so that every partial absence is deducted from the employee’s 12-week entitlement.

Calculating the Entitlement

FMLA leave is commonly described as 12 weeks, but in practice the amount depends on the employee’s regular schedule. To track it correctly, the total should be converted into hours based on the employee’s regular schedule:

An employee who works 40 hours per week is entitled to 480 hours of leave (12 weeks × 40 hours).
An employee who works 50 hours per week is entitled to 600 hours of leave (12 weeks × 50 hours).
A part-time employee who works 30 hours per week is entitled to 360 hours of leave (12 weeks × 30 hours).

Using hours instead of weeks is especially important for intermittent or reduced schedules, since each partial day or shorter shift has to be subtracted from the total balance.

Risks of Mishandling Leave Schedules

Granting more time than the law allows disrupts staffing and creates expectations that future requests outside the law will be honored. Other employees may also see the decision as unfair, which can affect morale. Cutting leave short carries even greater risk. Denying the full entitlement exposes the employer to interference claims, back pay liability, benefit restoration, attorney fees, and Department of Labor investigations that rarely stop at a single case.

5. Provide Required Notices

Employers have to give employees clear written notices at specific points in the FMLA process. Each notice has a deadline, and failing to deliver the required notice on time can expose the employer to liability. Notices explain whether an employee is eligible, what their responsibilities are, and how the time off will be counted.

General Notice

Covered employers are required to display the Department of Labor’s FMLA poster in a place where employees and job applicants can see it. If an employer provides an employee handbook, FMLA information has to be included there as well. If a significant part of the workforce cannot read English, the notice should also be available in the language used by that group.

Eligibility Notice

When an employee requests leave, or when the employer learns that the reason for an employee's requested time off may qualify under FMLA, the employer has five business days to tell the employee whether they are eligible. If the employee is not eligible, the notice has to state the reason, like not enough hours worked or a location with fewer than 50 employees.

Rights and Responsibilities Notice

Along with the eligibility notice, the employer has to give the employee written information about their obligations going forward. The notice should cover medical certification requirements, whether accrued paid leave will run at the same time as FMLA leave, and whether the employee will be required to provide a fitness-for-duty before they can return to work.

Designation Notice

After reviewing the request and any required documentation, the employer has five business days to issue a written designation notice. Designation notices have to state whether the leave qualifies as FMLA and specify how much of the employee’s entitlement will be counted.

Risks of Missing Notices

Employers that delay or skip providing required notices expose themselves to FMLA interference claims. Employees who do not receive notices within the prescribed time frames can recover back pay, restoration of benefits, attorney fees, and other remedies. The Department of Labor may also investigate and impose penalties when notice obligations are ignored.

5. Collect and Review Documentation

Employers can require documentation to support certain FMLA leave requests, including medical certifications and other forms tied to the reason for leave.

Medical Certification

If an employee requests leave for a serious health condition, FMLA allows the employer to request certification from a health care provider. The same rule applies when the employee needs leave to care for a qualifying family member. A complete certification should state when the condition began, how long it is expected to last, and whether the employee or family member is medically able to work or perform normal activities.

Clarification and Second Opinions

If a certification is incomplete, the employer has to tell the employee what information is missing and give at least seven calendar days to fix it. If the certification is unclear, HR or a leave administrator (not the direct supervisor) may contact the health care provider to explain what was already written. Employers are not allowed to ask the provider for new or additional medical details beyond what is in the certification.

When an employer has a legitimate reason to doubt whether the certification is valid, they can request a second opinion at company expense. If the employee's and the employer's opinions differ, the employer may obtain a third opinion, which is final and is also paid for by the employer.

Recertification

FMLA allows employers to request updated medical certifications in specific situations. For example, when the employee seeks an extension beyond the period of leave originally approved, when the frequency or duration of periodic absences is inconsistent with the original certification, or when the employer has a legitimate reason to question the original certification.

Confidentiality Requirements

Employers are required to keep FMLA certifications separate from personnel files. Personnel files typically contain routine employment records like job applications and performance reviews, while certification files include private medical information about the employee or a family member. Because of this, certification records are confidential and should only be accessible by HR or staff responsible for managing leave. The Genetic Information Nondiscrimination Act (GINA) also prohibits employers from requesting or keeping family medical history or genetic information.

Consequences for Mishandling Documentation

When employers approve leave without first collecting a certification, they risk granting time off that may not qualify for FMLA protection. When they deny leave because somewhere along the line someone mishandled the paperwork, they expose themselves to interference claims, back pay liability, attorney fees, and Department of Labor enforcement.

6. Maintain Benefits and Restore Employees to Their Jobs

FMLA requires employers to maintain group health plan coverage during leave on the same terms as if the employee were actively working, to reinstate the employee to the same or an equivalent position when the leave ends, and to require a fitness-for-duty certification before return if the leave was for the employee’s own health condition and the requirement was communicated in advance.

Health Benefits

When employees are out on FMLA leave, employers have to maintain group health coverage. The same cost-sharing arrangement that applied while the employee was working continues during FMLA leave, with the employer paying its normal share of the premium and the employee covering the rest.”

Job Restoration

When employees return from FMLA leave, employers have to reinstate them to the same job or to an equivalent one with the same pay, benefits, schedule, and worksite. The only exception applies to “key employees,” which are defined as the highest-paid 10 percent of salaried workers within 75 miles. FMLA allows employers to deny reinstatement of key employees only if returning the employee to their original position or an equivalent one would cause the company substantial and grievous economic injury. Employers that rely on this exception are required to notify the employee in writing, and still have to provide the full leave period and maintain health coverage during the absence.

Fitness-for-Duty Certification

When employees take leave for their own health condition, employers may require a fitness-for-duty certification from the employee’s health care provider before the employee returns to work. The certification should confirm that the employee's medical condition will not prevent them from safely performing the duties of their position. Employers have to apply this requirement consistently across similar roles and inform employees of it before the leave begins.

7. Manage Overlapping Laws

FMLA sometimes overlaps with other federal and state requirements, and employers have to apply whichever law provides the employee with the greatest protection.

ADA: If the employee’s condition qualifies as a disability, the ADA may require the employer to provide additional leave or a modified work schedule as a reasonable accommodation even after FMLA leave is used. Employers cannot demand that the employee be fully recovered before returning if the employee can perform the job with a reasonable accommodation.
Workers’ Compensation: If an employee is injured at work and the injury also meets the FMLA definition of a serious health condition, employers are required to designate the leave under FMLA so the two run at the same time. Employers cannot force an employee to accept light duty instead of FMLA leave, but if an employee voluntarily accepts light duty, job restoration rights continue until the 12-week FMLA entitlement is exhausted.
State Leave Laws: Many states have family and medical leave laws that provide greater protections than federal FMLA. State rules may apply to smaller employers, cover additional family relationships, extend the length of leave, or provide paid benefits funded through state programs. When both federal and state laws apply, employers should designate the leave under both and follow whichever terms are more favorable to the employee.

8. Create and Retain Accurate Records

FMLA requires employers to keep basic payroll and identifying data, dates and hours of FMLA leave taken, copies of employee notices, copies of eligibility and designation notices, documents describing benefits and leave policies, records of premium payments, and records of disputes over FMLA coverage. Employers should retain leave records for at least three years and provide them to the Department of Labor if requested.

Protecting Your Business with Conn Maciel Carey, LLP

Employers that follow FMLA rules consistently and keep accurate documentation are in the best position to properly manage FMLA leave and reduce the risk of disputes. The national labor and employment group at Conn Maciel Carey, LLP advises employers on responding to DOL audits focused on FMLA practices, defending against employee claims of interference or retaliation, and reviewing leave policies to identify gaps that could expose the company to liability.

Contact our team at (202) 715-6244 to protect your organization before small mistakes turn into costly claims.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.