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What Every Employer Needs to Know About FMLA
Jun 30, 2026
A plain-language walkthrough of eligibility rules, required forms, and what happens when it's time for an employee to come back.
The Family and Medical Leave Act isn't the most thrilling read, but it's one of the most consequential pieces of federal employment law on the books. Get it wrong, and you're looking at compliance risk, legal exposure, and a damaged relationship with your employee. Get it right, and you've got a clear, consistent process that protects everyone involved. Here's what you need to know, broken down into plain language.
Does This Apply to You?
Before you do anything else, make sure FMLA actually applies to your organization. The law covers employers with 50 or more employees for at least 20 workweeks in the current or prior calendar year. That headcount includes everyone on payroll during a given workweek: part-timers, seasonal workers, employees on paid or unpaid leave. Even if someone isn't getting a paycheck that week, they still count as long as there's a reasonable expectation they'll return to work.
Something worth knowing: those 20 workweeks don't need to be consecutive. You're looking at any combination of weeks across the calendar year.
Is the Employee Actually Eligible?
Just because FMLA applies to your company doesn't mean every employee qualifies. There are three questions to run through, and you need a "yes" to all three:
Does the employee work at a location where the company has at least 50 employees within 75 miles? (Remote workers count toward the location they report to.)
Has the employee been with the company for at least 12 months?
Has the employee logged at least 1,250 hours in the 12 months before the leave begins?
If any answer is "no," the employee isn't eligible for federal FMLA leave. You'll want to give them a written notice of ineligibility, and if applicable, let them know when they would likely qualify. Keep a copy of that letter in their personnel file.
Does the Reason for Leave Qualify?
Even an eligible employee can only use FMLA for specific reasons. The leave has to fall into one of these categories:
Bonding with a new child, including birth, adoption, or foster placement (within 12 months of the event)
The employee's own serious health condition, including pregnancy-related incapacity, prenatal care, or recovery from childbirth
Caring for a spouse, child, or parent with a serious health condition
A qualifying military exigency, when a spouse, child, or parent is on active duty or called up for foreign deployment
Caring for a seriously injured or ill covered service member (up to 26 workweeks total)
If the reason doesn't fit one of those buckets, it's not covered under federal FMLA. Again, provide a written notice and file it away.
How Much Time Can They Take?
The answer depends on the employee's schedule.
Standard Schedules: For employees with a regular, fixed workweek, the entitlement is 12 workweeks, or 480 hours.
Variable Schedules: For employees with irregular hours, calculate the average hours worked per week over the prior 12 months, then multiply by 12. So if someone typically works 30 hours a week, their leave entitlement works out to 360 hours.
Leave Already Used: If the employee has taken FMLA leave at any point in the past 12 months, subtract that time from their annual entitlement. Whatever's left is what they have available now.
Leave can be taken all at once, or in smaller increments when medically necessary. One nuance worth calling out: intermittent or reduced-schedule leave is available for medical situations and qualifying military family leave. But for bonding leave with a new child, intermittent scheduling only works if both the employee and employer agree to it.
The Forms You Need to Know
Once you've confirmed eligibility and a qualifying reason, the paperwork process begins. Here's the core lineup:
WH-381 (Notice of Eligibility and Rights & Responsibilities): Provide within 5 business days of the leave request
WH-382 (Designation Notice, used to approve, deny, or request more info): Provide within 5 business days of determining eligibility
WH-380-E (Health Care Provider Certification for the employee's own condition): Send at time of WH-381, allow 15 calendar days to return
WH-380-F (Health Care Provider Certification for a family member's condition): Send at time of WH-381, allow 15 calendar days to return
WH-384 (Qualifying Exigency Certification for Military Family Leave): Use when military exigency is the qualifying reason
WH-385 / WH-385-V (Serious Injury or Illness Certification for active service member or veteran): Use when military caregiver leave is the qualifying reason
Beyond the required forms, best practice is to also send the employee a copy of their job description, an FMLA leave request form, and a GINA Safe Harbor Notice, all at the same time you send the WH-381.
A quick note on the GINA Safe Harbor Notice: GINA (the Genetic Information Nondiscrimination Act) prohibits employers from requesting or using an employee's genetic information, including family medical history, in employment decisions. When you send health care provider certification forms, there's a risk that the provider might volunteer that kind of information without being asked. Including the GINA Safe Harbor Notice with your paperwork instructs the provider not to provide genetic information, which protects both the employee and the employer.
Managing Benefits During Leave
If the employee participates in employer-sponsored group health insurance, they're entitled to continue that coverage during FMLA leave, on the same terms as active employees. Send them a Benefits Continuation Letter explaining their rights and what they'll owe while on leave.
Heads up: if a premium payment is more than 30 days late, you can move toward terminating coverage, but there are rules. You must mail a written notice giving at least 15 days to make payment before coverage can be canceled. Don't skip this step.
Bringing the Employee Back
As the return date approaches, HR should be in regular contact with the employee to confirm their plans and keep their manager informed. Depending on the nature of the leave, you may be able to require a Fitness for Duty Certification from their treating healthcare provider before they return.
If the provider notes any work restrictions, give the employee a Work Restrictions Response Letter and have them sign an Employee Acknowledgment Form. Then, when they're back, the law is clear: they must be restored to the same position, or an equivalent one, with the same pay, benefits, and working conditions. Health coverage that lapsed during leave for nonpayment or was declined must be reinstated on their return date, no new waiting period required.
Returning from FMLA leave shouldn't feel like starting over. The law exists to make sure it doesn't.
A Note on State Law
This overview covers federal FMLA only. Many states have their own family and medical leave laws, and some of them impose stricter or broader requirements. Before finalizing your FMLA procedures, check whether your state has a separate law that applies to your organization, because where state and federal requirements differ, the more protective standard typically wins.
The Bottom Line
FMLA compliance comes down to three things: knowing who qualifies, following the paperwork timeline, and restoring employees properly when they return. A few reminders to keep close:
Confirm employer and employee eligibility before taking any other steps
Send the WH-381 within 5 business days of a leave request, no exceptions
Keep benefit continuation on track and document every notice you send
Restore returning employees to the same or equivalent position, full stop
Always check your state's leave laws, because federal minimums aren't always the ceiling
Ready to Build a Compliant FMLA Process?
Managing FMLA correctly takes more than knowing the rules. It takes consistent documentation, timely notices, and a process your whole team can follow. APS can help you build that. Reach out to our team to learn how our HR and payroll solutions support compliant leave management from start to finish.
