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Family and medical leave — Minnesota


Caring for family members with a medical condition that prohibits them from working

The FMLA is a federal statute designed to protect families and employees by allowing them to take leave from work without losing their jobs and benefits. In general, the FMLA requires covered employers to allow an eligible employee to take up to 12 weeks of unpaid leave during a 12-month period for reasons including:

  • the birth or placement/adoption of the employee’s child
  • a serious health condition affecting the employee or certain family members
  • a qualifying exigency for an employee whose son, daughter, parent or next of kin is a covered military member on active duty or called to active duty status.

Furthermore, eligible employees who are the parent, child, spouse, or next of kin of covered service members are entitled to take up to a combined total of 26 weeks of leave during a single 12-month period to care for a covered service member with:

  • a serious illness or injury incurred in the line of duty on active duty
  • an illness or injury that existed prior to the beginning of the service member’s active duty that was aggravated by service in the line of duty on active duty.

Covered service members include veterans who were members of the Armed Forces at any point in time within five years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy.

An administrative interpretation issued by the U.S. Department of Labor extended the reach of the FMLA to situations in which an employee is acting in loco parentis to a son or daughter. In loco parentis, which means “in place of a parent,” applies when an employee is responsible for the day-to-day care or financial support of a minor child. In August 2013, the DOL affirmed that spousal leave based on same-sex marriages is protected under the FMLA and declared its intention to look for every opportunity to implement the law in a way that provides maximum protection for workers. The DOL updated its regulations in early 2014 to clarify that for FMLA purposes, a marriage is considered to exist based on its validity under the law of the jurisdiction where the parties were married. 

In most circumstances, employees returning from FMLA leave must be reinstated to the same or equivalent position, with the same pay and benefits.

Because of the complexity of the FMLA statute and the DOL’s FMLA regulations, many employers have difficulty determining when an employee is entitled to FMLA leave and what conditions may be placed upon such leave. Employers must also consider that Minnesota also has its own Parental Leave Act which provides some of the same coverage as FMLA, although to a lesser extent.


Private and public employers are covered by the FMLA if they meet certain threshold requirements.

Private employers

  • Family Medical Leave Act - A private employer is covered under the FMLA if the employer employs 50 or more employees each working day for 20 or more (not necessarily consecutive) calendar workweeks in the current or preceding calendar year. Once a private employer satisfies the 50-employee and 20‑workweek thresholds, the employer remains covered until it no longer employs at least 50 employees during 20 (not necessarily nonconsecutive) calendar workweeks in both the current and preceding calendar years. 
    The definition of “employee” under the FMLA is relatively broad and is based on the definitions contained in the federal Fair Labor Standards Act (FLSA). In general, a person is counted as an employee for purposes of the 50-employee threshold in the following circumstances:
    • The person’s name is on the employer’s payroll each working day of the calendar week, even if no compensation is received.
    • The person is on paid or unpaid leave, including FMLA leave, leaves of absence, and disciplinary suspension, and the employee has a reasonable expectation of later returning to active employment.
    • Even if the person is part-time, not full-time.
    • Even if the person is employed outside of Minnesota (subject to the restrictions explained in the next paragraph).
  • A person is not counted as an employee for purposes of the 50-employee threshold in the following circumstances:
    • The person is employed outside of any state of the United States, the District of Columbia, and any territory or possession of the United States (however, those persons may still be eligible to take FMLA leave, as explained below).
    • The person is laid off, whether temporarily or permanently.
    • The person is not employed for each working day of the entire calendar week (note that “employed” does not mean actively working every day of the week).
  • Minnesota Parental Leave Act - An employer with 21 or more workers at any one site of the employer’s business is also covered by and subject to the requirements of the Minnesota Parental Leave Act.

Public employers

The FMLA applies to many public employers, including the United States government, the Minnesota government, and agencies of the United States or of the state of Minnesota. Public employers do not have to meet the 50-employee or 20-week thresholds applicable to private employers.

Eligible employees

  • Family and Medical Leave Act - For an employee to be eligible for FMLA leave, the employee must have worked for a covered employer for at least 12 months and must have worked for that covered employer for at least 1,250 hours during the 12‑month period immediately preceding the start of the FMLA leave.  
    The 12 months of employment need not be consecutive. However, employment periods prior to a break in service of seven years or more need not be counted in determining eligibility, except in two situations:
    1. where a written agreement, including a collective bargaining agreement, exists concerning the employer’s intent to rehire the employee after the break in service
    2. where the break in service is due to fulfillment of a National Guard or military service obligation. Moreover, time spent performing military service must be counted in determining whether the employee has been employed for at least 12 months by the employer.
  • An employee who first becomes eligible for FMLA protection while on a non-FMLA leave may acquire protection during the employee’s leave. Specifically, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirements would be counted as FMLA protected leave.   

    To be eligible for FMLA leave, an employee must also be employed at a worksite where the covered employer employs at least 50 employees within a 75‑mile radius. This eligibility requirement is determined as of the date the employee requests leave. It is important to note that this is a different requirement than the 50-employee threshold discussed previously, which is used to determine whether an employer is covered under the FMLA. It is possible for an employer to be covered under the FMLA but not to have any eligible employees. For instance, if an employer employs one employee in each of the 50 states, it is a covered employer, although none of the employees will be eligible for FMLA leave because no one works at a worksite with at least 50 employees within a 75-mile radius.
  • Minnesota Parental Leave Act - Employees are eligible for protection under the Minnesota Parental Leave Act if they have been employed with a qualifying Minnesota employer for at least 12 consecutive months and have worked for an average of at least one-half the full-time equivalent position in the employee’s job classification during those 12 months.

Leave requirement

Under the Family and Medical Leave Act

An employee is not required to request protection under the FMLA specifically. Rather, the employee must only provide notice requesting leave and a qualifying reason for requesting leave. A covered employer must then provide the eligible employee with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:

  • for the birth of the employee’s son or daughter and to care for the newborn son or daughter within one year of birth
  • for the placement of a son or daughter with the employee for adoption or foster care and to care for the newly placed son or daughter within one year of placement
  • to care for the employee’s son or daughter, parent, or spouse who suffers from a “serious health condition”
  • because of the employee’s own “serious health condition” that makes the employee unable to perform the functions of the job.

If spouses work for the same employer, the FMLA entitles them to a combined total of 12 weeks of leave per 12-month period for birth, adoption, foster care, or to care for a sick parent. Each spouse, however, is entitled to the remainder of the spouse's 12-week entitlement for any other qualifying leave.

The FMLA also provides special protection to family members of military personnel. Specifically:

  • An eligible employee may take up to 12 weeks of leave due to a “qualifying exigency” arising because that employee’s spouse, child, or parent is on active duty or has been notified of an impending call to active duty status

  • Under the 2013 amendments to the regulations, a qualifying exigency now exists for parental care. Eligible employees may now take qualifying exigency leave for activities related to the care of a military member’s parent who is incapable of self-care where the need for those activities arise directly from a military member’s covered active duty. Those activities include:

    • arranging for alternative care
    • providing care on an urgent, immediate need basis (but not on a routine, regular, or everyday basis)
    • admitting or transferring the parent to a care facility
    • attending meetings with staff at a care facility (but not for routine or regular meetings)
  • Families of regular U.S. Armed Forces, National Guard, and Reserves may qualify for exigency leave if the covered service member is being deployed to a foreign country
  • An eligible employee who is the spouse, child, parent, or next of kin of a covered service member may take up to 26 workweeks of leave to care for such service member recovering from a serious illness or injury that was incurred or aggravated in the line of duty on active duty even if it was manifested before or after the veteran left active duty status. This expanded regulation includes veterans who are undergoing medical treatment, recuperation, or therapy provided the veteran meets all of the following criteria:
    • was a member of the Armed Forces (including the National Guard or Reserves)
    • was released under any condition other than “dishonorable”
    • was discharged within a five-year period before the eligible employee first takes leave. (The five-year period begins on the date of discharge or March 8, 2013, whichever is later.)

Leave under this provision must be taken during a single 12-month period.

Under Minnesota law

If a Minnesota employer is subject to the requirements of the Minnesota Parental Leave Act, the only situations giving rise to leave under that Act are the birth or adoption of a child. The Minnesota Parental Leave Act does not cover the foster care placement of a child with the employee, nor does it provide leave for any medical reason outside of what an employee would have available under the employer's standard sick leave policy (if the employer has such a policy).

Calculating the 12-month period

Employees are entitled to up to 12 weeks of FMLA leave during any 12-month period (other than for military caregiver leave, which allows a combined 26 weeks of FMLA leave in a single 12-month period). The FMLA allows an employer to choose among the following four methods when determining the 12-month period (other than for military caregiver leave):

  • a calendar year
  • a fixed 12-month period, such as a fiscal year or a year that renews on the date the employee was hired
  • the 12-month period measured forward from the date the employee’s first FMLA leave begins
  • a rolling 12-month period measured backward from the date the employee uses any FMLA leave.

Most employers prefer the latter two methods of determining the 12-month period, because they prevent employees from taking more than 12 weeks of leave at any one time. For example, if the calendar year is used as the 12-month period, it would be possible for an employee to start FMLA leave in October of one year and not return to work until April of the following year.  

An employer should designate in advance which method it wishes to use to calculate the 12-month leave periods, and it must then apply the method uniformly and consistently. If the employer fails to select a method and/or to notify the employees as to which method applies, the method most beneficial to each employee will apply. Employers are allowed to change the method of calculation, but only if employees are notified at least 60 days in advance and as long as the employees will receive the full benefit of their 12 weeks. In other words, if an employer changes from calendar year to the “rolling” method, it must allow employees to continue to use the calendar year method until it is more beneficial for them to use the rolling method.

Significantly, calculation of the single 12-month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave.

Intermittent leave and reduced leave schedule

An employee does not have to take all 12 weeks of FMLA at once. It can also be taken as intermittent leave or on a reduced leave schedule. “Intermittent leave” means that leave is taken in separate blocks of time due to a single qualifying condition. “Reduced leave schedule” means that the employee works fewer than the employee’s usual number of working hours per workweek or hours per workday.

Assuming that an employer is covered under the FMLA and the employee is eligible for FMLA leave, the employer must allow intermittent leave and or a reduced leave schedule in the following circumstances:

  • when medically necessary for planned and/or unanticipated medical treatment of a serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition
  • to provide care or psychological comfort to the employee’s spouse, child, or parent with a serious health condition, or for a covered service member with a serious injury or illness
  • for a qualifying exigency.

Intermittent leave and/or reduced schedule leave is also available to eligible employees for the birth of a child or placement of a child for adoption or foster care, but only with the consent of the covered employer.

During intermittent leave and or reduced schedule leave, the covered employer may temporarily transfer an employee to an alternative position, but only under the following circumstances:

  • The employee must be qualified for the position.
  • The position must better accommodate the recurring leave better than the other position.
  • The position must have equivalent pay and benefits (although not equivalent prestige).

An employee’s salary may be reduced while on intermittent leave and/or reduced schedule leave, but employee benefits may only be reduced proportionately to the number of hours worked if such reduction is normal practice for the employer.

Employees must make a reasonable effort to schedule treatment so as not to disrupt unduly the employer’s operations.  Moreover, employers are not required to account for FMLA leave in increments smaller than one hour just because their payroll systems are capable of tracking smaller time increments. Rather, an employer may choose to account for FMLA leave in any increment not to exceed one hour so long as it matches the smallest increment used by the employer to track any other type of leave.

For instance, if an employer accounts for sick leave in 30-minute increments and vacation time in one-hour increments, FMLA leave must be accounted for in 30-minute increments.

Additionally, employers may not charge FMLA leave for any period of time during which an employee performs work. For example, if an employee needs FMLA leave 45 minutes before the end of the employee’s shift, but the employer tracks all time off in increments of one hour, the employee only can be charged 45 minutes of FMLA leave. Accordingly, employers must be cautious in how they account for FMLA leave.

Important definitions

It is important to consider the definitions contained in the FMLA regulations. Some of the more important definitions are:

  • Serious health condition - The regulations define the term “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves any of the following:
    • an incapacity or treatment in connection with inpatient care
    • an incapacity requiring absence of more than three consecutive, full calendar days and continuing treatment by a health care provider
    • continuing treatment by a health care provider of a chronic or long-term condition that is incurable or will likely result in incapacity of more than three days if not treated.
  • Several types of illnesses or injuries are specifically excluded from the definition of “serious health condition” in the FMLA regulations, including the following:
    • ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, and periodontal disease
    • absence because of substance abuse itself will not qualify an employee for FMLA leave (however, substance abuse may be a “serious health condition” if the other conditions are met, in which case FMLA leave may be taken for treatment of substance abuse by a health care provider such as enrollment in a drug rehabilitation program)
    • cosmetic treatment will not qualify an employee for FMLA leave unless inpatient hospital care is required or complications develop.
  • Incapacity - The regulations define “incapacity” as the inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.
  • Continuing treatment - The regulations define “continuing treatment” as a serious health condition involving continuing treatment by a health care provider and including any one or more of the following:
    • A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either of the following:
      • treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (for example, physical therapist) under orders of, or on referral by, a health care provider
      • treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider.
    • Any period of incapacity due to pregnancy or for prenatal care.
    • Any period of incapacity or treatment for such incapacity due to a chronic serious health condition.
    • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
    • Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).
  • Regulations under the FMLA clarify that treatments by a health care provider require:
    • an in-person visit to a health care provider
    • that treatments two or more times must be within the first 30 days of incapacity, absent extenuating circumstances
    • that the first treatment visit must take place within seven days of the first day of incapacity
    • that any determinations of whether additional treatment visits or regimens of continuing treatment are necessary shall be made by the health care provider, not the employee.
  • Chronic health condition - The regulations define chronic health condition as a serious health condition that meets the following criteria:
    • requires periodic visits for treatment by a health care provider or by a nurse or physician’s assistant under direct supervision of a health care provider
    • continues over an extended period of time (including recurring episodes of a single underlying condition)
    • may cause episodic rather than a continuing period of incapacity (such as asthma, diabetes, epilepsy, etc.).
  • The new FMLA regulations define “periodic visits” to mean visits at least twice a year.
  • Needed to care for a family member - The regulations define “needed to care for a family member” to include the following:
    • physical and psychological care
    • where the employee is needed to fill in for others providing care or to arrange for third-party care of the family member.
  • Unable to perform the functions of the job - The regulations define “unable to perform the functions of the job” as one of the following:
    • unable to work at all
    • unable to perform any of the essential functions of the employee's position. The term “essential functions” is borrowed from the ADA to mean one or more of “the fundamental job duties of the employment position” and does not include the marginal functions of the position.
  • Health care provider - The regulations define “health care provider” broadly as one of the following:
    • a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices
    • any other person determined by the Secretary to be capable of providing health care services, including:
      • podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law
      • nurse practitioners, nurse midwives, clinical social workers, and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law
      • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts
      • any health care provider from whom an employer or a group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits
      • a health care provider as defined in this list who practices in a country other than the United States, who is licensed to practice in accordance with the laws and regulations of that country.

Maintenance of group health plan benefits and other benefits

While the FMLA does not require a covered employer to pay employees during FMLA leave (unless the employer agrees to substitute paid leave – see Substitution of paid leave), the employer must continue to provide eligible employees any benefits that they may have accrued prior to beginning FMLA leave. If benefits are added or changed during the leave to other employees of a covered employer, the employee on leave is also subject to those modifications. 

For example, a covered employer must continue to provide coverage under its group health plan to the employee during the leave period under the same terms as if the employee continued employment. If employees regularly pay a portion of the insurance premiums, an employee will have to continue to make such payments while on leave if the employee wants to continue group health plan coverage during the leave. If an employee does not pay the employee's portion of premiums during leave, the employer is not required to pay that portion and can let the policy lapse. However, this can cause problems when the employee returns to work, since the coverage will need to be in place at that time. With some health plans, it is difficult to drop coverage and then reinstate coverage in a timely manner. Therefore, many employers choose to pay the premiums on the employee’s behalf and then to obtain reimbursement from the employee. If the employee fails to return to work, an employer is entitled to recover premiums paid for maintaining coverage so long as the failure to return is not due to a serious health condition of the employee or other circumstances beyond the employee's control. An employee should note that although a covered employer’s FMLA obligations end when the employment relationship ends, the employer may still have obligations to maintain health benefits as required by the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA).  

An employee on FMLA leave will remain entitled to any unconditional pay increases granted during the leave. However, under the new regulations, employers may deny certain bonuses or payments to employees who took FMLA leave if such bonuses or other payments are “based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave.” Significantly, however, FMLA and similar, non-FMLA leave must be treated the same for purposes of determining such bonuses or other payments.  

Employers should also note that an employee is not entitled to the accrual of any seniority or employment benefits during the period of leave, although any benefits that accrued before the leave began are unaffected by the leave. At the same time, unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting, or eligibility to participate in employee benefits, unless the terms of the benefit plans require the leave period to be credited service.

Reinstatement after leave

In general, after returning from a qualified FMLA leave, an employee must be reinstated to the employee's former job or to an “equivalent” position with equivalent benefits, pay, and other terms and conditions of employment. Reinstatement must occur even if someone else has been hired to take the employee’s position or the former position has been changed because of the employee’s absence.

An “equivalent” position is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges and status. Furthermore, it must have the same or substantially the same duties and responsibilities, which must require substantially equivalent skill, effort, responsibility, and authority.


There are a number of exceptions to the general reinstatement rule. One exception to the right to reinstatement exists if an employee is unable to perform an essential function of the position because of a physical or mental condition. For instance, if the employee is on FMLA leave because of a serious health condition, and if the serious health condition continues after the end of the FMLA and renders the employee unable to work or unable to work in the same capacity, the employer is not obligated to reinstate the employee to the employee's former position. However, the ADA may govern such instances, so an employer should seek legal counsel before refusing reinstatement to someone returning from FMLA leave. 

A second exception is that an employee who finishes FMLA leave has no greater entitlement to reinstatement than the employee would have had if there had been no absence due to the FMLA leave. For example, if the employee’s position was eliminated in a nondiscriminatory reduction in force, reinstatement is not required. An employer has the burden to prove that an employee would have been terminated even if the employee had not taken FMLA leave in order to deny restoration to employment. 

Reinstatement is also not required if the employee informs the employer that the employee does not intend to return to work.  Similarly, if the employee fails to return after exhausting FMLA benefits, the employer’s FMLA obligations end. Employers may also deny reinstatement to “key employees” if all of the following are true:

  • The employee is salaried.
  • The employee is among the highest paid 10% of all of the employer’s employees at the employee’s worksite or within a 75 mile radius of that worksite.
  • At the time the employee requests FMLA leave or the date when FMLA leave starts, whichever is earlier, the employer must have given written notice to the employee of the following:
    • the employee’s status as a key employee
    • the potential consequences regarding reinstatement and maintenance of health benefits if the employer should determine that “serious and grievous economic injury to the employer’s operations” will result from reinstatement.
  • Upon determining that such economic injury will occur upon reinstatement, the employer must have notified the employee in writing of the following:
    • that the determination has been made
    • that the employer cannot deny FMLA leave
    • that the employer intends to deny reinstatement after FMLA leave is finished
    • the basis for the determination.
  • The notice must have been given in person or by certified mail to the employee and must have provided the employee a reasonable time to return to work.

Employee notice requirements

When an eligible employee plans to take foreseeable leave, such as in the case of expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition, the employee must provide at least 30 days’ notice of the employee’s intention to take leave before the leave is to begin. 

The notice from the employee can be verbal and does not have to mention the FMLA. However, an employer can require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent extenuating circumstances. Therefore, it is very important for an employer to train its managers to recognize when FMLA leave may be required and as to what constitutes proper notice under the FMLA.

If the employee fails to give 30 days’ notice for a foreseeable leave with no reasonable excuse for the delay, the employer may deny the taking of leave until at least 30 days after the employee provides notice, provided that the employee had actual notice of FMLA notice requirements. The employer can also waive the notice requirement, however, waiving it for one employee may set a precedent for other employees.

If the employee intends to take leave sooner than 30 days or otherwise changes the start date for the anticipated leave, the employee must provide notice of any such change “as soon as practicable,” which ordinarily may be satisfied by at least verbal notification to the employer either the same day or next business day after the need for leave becomes known to the employee. 

If an employee takes leave for planned medical treatment, the employee must make a reasonable effort to schedule the treatment in a manner that will not “unduly disrupt” the employer’s operations, subject to approval by a health care provider.

As stated previously, the employee need not specifically assert rights under FMLA or even mention the FMLA, but the employee may only state that leave is needed for a reason that is potentially qualifying under the FMLA. As soon as the employee informs the employer of the need for such an absence, the employer has the burden to determine whether the leave is actually for an FMLA-qualifying reason. If a serious health condition is the reason for the requested FMLA leave, the employer may request medical certification to determine if the reason for the leave qualifies as a serious health condition. 

If a collective bargaining agreement, state law, or an employer’s leave plan allows for lesser notice requirements, an employer cannot require compliance with the stricter FMLA requirements. Therefore, it is important for an employer to remember that its sick leave or personal leave policy may relax the notice requirements under FMLA. 

Employer's notice requirements

Designation of FMLA leave

If a covered employer provides written guidance concerning leaves, wages, attendance, or similar matters in handbooks or other written policies, the employer must include information concerning FMLA rights and employee FMLA obligations in those written materials. The materials must also include any requirements for medical certifications and fitness-for-duty certifications that the employer will impose. Electronic distribution of this type of notice is permitted.

Even if a covered employer does not have a handbook or other written policies, the employer must still provide written guidance explaining the FMLA to each employee upon hire, either in hard copy or electronically. Employers may use a form prepared by the DOL, known as the Employee Rights and Responsibilities under the Family and Medical Leave Act (WH Publication 1420 – Revised February 2013) to comply with this requirement. Alternatively, employers may use another format so long as the information includes, at a minimum, all of the information contained in the current WH Publication 1420, which is available at:

If a significant portion of the workforce is not literate in English, the notice must be in the language in which the employees are literate. Moreover, if FMLA notices are distributed to sensory-impaired individuals, the notices must comply with applicable requirements under federal and state laws.

A covered employer also has the responsibility to provide employees certain information about their eligibility for FMLA leave within five business days after acquiring knowledge that an employee’s leave may be for an FMLA qualifying reason, absent extenuating circumstances. Many employers use the optional Notice of Eligibility and Rights and Responsibilities form to comply with this requirement, which can be downloaded from the Department of Labor at:

Once an employer has sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason (such as after receiving a completed medical certification), the employer has five business days to notify the employee of that designation, absent extenuating circumstances. Many employers use the optional Designation Notice form from the Department of Labor, which form is available at:

If the employer requires a fitness-for-duty certification before an employee can be restored to employment, this requirement must be contained in the designation notice.

The FMLA regulations provide that an employer’s failure to give notice that the leave has been designated as FMLA leave, standing alone, does not violate the FMLA and that an employee must demonstrate individual harm as a result of the employer’s failure to follow the FMLA notification procedures in order for the employer to be liable.

The FMLA regulations also explicitly permit employers to retroactively designate /leave as FMLA leave, so long as the employer provides the affected employee with the applicable notices and the employer’s failure to make a timely designation does not cause harm or injury to the employee. Employers and employees may, but are not required to, mutually agree to a retroactive designation of FMLA leave.

If an employee provides notice of a subsequent need for FMLA leave during the applicable 12-month period for a different FMLA-qualifying reason and the employee’s eligibility status has not changed, no further eligibility notice must be provided (although a designation notice still is required). On the other hand, if the employee’s eligibility status has changed since the initial eligibility notice was provided, the employer must provide a new notice within 5 business days of acquiring knowledge that the employee’s leave may qualify as FMLA leave, absent extenuating circumstances.

Posting requirements

Covered employers are required to post notice of FMLA rights conspicuously and prominently, even if there are no eligible employees at a particular worksite. Electronic posting is permitted.

A poster satisfying the posting requirements and incorporating the new FMLA regulations can be obtained from a Department of Labor office and is also available at:

Again, the posting must be in the language in which the employees are literate. A Spanish version of the poster also can be obtained from a Department of Labor office.

Employers in violation of FMLA’s posting requirements may suffer civil penalties of up to $176 per violation and forfeit their rights to take adverse action, including denying FMLA leave, against employees who fail to satisfy requirements for taking FMLA leave.

Recordkeeping requirements

Employers should be aware that the FMLA imposes strict recordkeeping requirements. Covered employers must make, keep, and preserve records pertaining to their obligations under FMLA in accordance with section 11(c) of the Fair Labor Standards Act and FMLA regulations. Employers must keep these records for at least three years and make them available for inspection, copying, and transcription by the Department of Labor upon request. 

Employers must maintain records of the following information:

  • basic payroll and employee identification data
  • dates of FMLA leave
  • if FMLA leave is taken in increments of less than a full day, the hours of leave
  • copies of employee notices of leave and copies of general and specific notices given to employees
  • documents describing employee benefits and employer policies and practices regarding the taking of paid and unpaid leave
  • premium payments of employee benefits
  • records of disputes between the employee and employer regarding designation of FMLA leave.

Information relating to medical certifications, recertifications, or medical histories of employees or family members (created for the purpose of FMLA leave) must be maintained as confidential medical records in separate files from the usual personnel files.

Substitution of paid leave

An employer may require an employee on FMLA leave to substitute any applicable accrued paid leave for unpaid FMLA leave. In the alternative, an employer may permit the employee to make that decision. An employer may not prohibit the employee from making such substitution, however.

If the requirements to qualify for payments under an employer’s temporary disability benefits plan or other paid leave policy are more rigorous than the FMLA requirements, the employee must meet the more stringent eligibility and notification requirements of the plan in order to receive paid benefits under the plan during designated FMLA leave. If an employee receives paid disability benefits during an FMLA-qualifying leave, the provision for substitution of paid leave is applicable, and neither the employer nor the employee may require substitution of paid leave. However, where state law permits, employers and employees may agree to supplement paid disability benefits with accrued paid leave, such as in instances where the employee’s disability benefits only cover a portion of the employee’s wages.

An employee’s ability to substitute accrued paid leave for unpaid FMLA leave is determined by the terms and conditions of the employer's normal leave policy. Accordingly, if an employer requires employees to provide two days’ notice of the need for paid personal time off, such notice requirements may be applied to the substitution of accrued, paid personal time off for unpaid FMLA leave. Similarly, if an employer requires paid sick leave to be used in full-day increments, and the employee requests FMLA leave for a shorter duration of time but wants to substitute paid sick leave, the employee must take the larger increment of leave required under the paid leave policy unless the employer chooses to waive the requirement.

Regardless of whether the leave is paid, the employee’s FMLA-qualifying absence remains protected by FMLA. If an employee uses paid leave under circumstances that do not qualify as FMLA leave, the leave will not count against the 12 weeks of FMLA to which the employee is entitled.

Providing medical certification to go on leave

When an employee submits a request for FMLA leave related to a serious health condition, an employer may require the employee to submit a medical certification form, signed by a health care provider, indicating that the employee does in fact suffer from a serious health condition. The Department of Labor has developed a medical certification form that most employers use. It is available at:

The DOL also has developed medical certifications for situations where the employee’s family member suffers from a serious health condition and for situations where an employee needs leave to care for a covered service member with a serious illness or injury. These forms are available at:

In addition, the Department of Labor has developed a Certification of Qualifying Exigency for Military Family Leave. The Certification can be downloaded at:

An employer should make the request for written certification within five business days of receiving notice of leave from the employee. Employees must, in turn, provide the requested certification within 15 calendar days after the employer’s request, unless it is not practicable under the circumstances or the employer provides the employee with more than 15 calendar days to return the certification. 

The 2009 FMLA regulations also permit an employer to contact an employee’s health care provider directly for clarification and authentication of medical certifications (other than those related to military leaves) once certain conditions have been met. First, the employer must specify in writing what information is lacking from the medical certification and provide the employee with seven calendar days to cure the deficiencies and/or authorize the employer to contact the employee’s health care provider. Second, if the employer has the necessary authorization, the new regulations specify that the employer’s contact must be a health care provider, human resource professional, leave administrator, or a management official, and cannot be an employee’s direct supervisor. 

Employers generally are prohibited from requesting additional information from an employee’s health care provider. However, the new regulations provide that if an employee’s serious health condition may also be a disability under the ADA, that the FMLA:

  • does not prevent the employer from following the procedures for requesting medical information under the ADA
  • that any information received may be used in determining an employee’s entitlement to FMLA leave.

If the employer has reason to doubt the validity of a medical certification, then it may require the employee to obtain a second or third opinion from another health care provider at the employer’s (not the employee’s) expense, provided that the health care provider is not employed by the employer on a regular basis. The third health care provider must be designated or approved jointly by the employer and the employee. The third opinion will be considered final and binding. 

If an employer finds a certification insufficient, it must provide the employee with a written statement advising the employee what additional information is necessary to make the certification complete and sufficient and the consequences of failure to cure any deficiencies. An employee must be provided with seven calendar days to cure the deficiency, absent situations where the time frame is not practicable despite the employee’s diligent efforts. If the certification’s deficiency is not cured by a resubmitted certification, the employer may deny FMLA leave based on the incomplete and/or insufficient certification.

An employer generally may require recertification for pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a health care provider no more often than once every 30 days and only in connection with an absence, unless the medical certification indicates a minimum duration of a condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification. However, employers need not wait 30 days or the minimum duration of the certification, if longer than 30 days, and if one of the following circumstances applies:

  • the employee requests an extension of leave
  • circumstances described by the previous certification have changed significantly, such as the duration or frequency of absences, the severity of the condition, or complications
  • the employer receives information that causes it to doubt the stated reason for the absence (such as a reliable report that the employee is on vacation rather than in the hospital).

An employer also may require an employee to provide a new medical certification where the employee’s need for FMLA leave due to the employee’s or family member’s serious health condition lasts beyond a single leave year.


The statute and regulations governing family and medical leave are enforced by the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration. Most violations of the FMLA are the result of employer confusion in interpreting and implementing FMLA, as opposed to willful violations.

Common violations committed by employers include the following:

  • failure to notify an employee of FMLA rights
  • failure to grant leave to provide care to a family member with a serious health condition
  • termination of an employee during or at the conclusion of FMLA leave.

An eligible employee may file a private civil action against an employer in state or federal court for FMLA violations. An employee must file such lawsuit within two years of the date of the alleged violation, but the time period is extended to three years for willful violations. Unlike some other civil rights statutes, an employee enforcing the employee's rights under the FMLA is not required to file a complaint with the Wage and Hour Division prior to filing a civil lawsuit, although such employee is entitled to do so.