FMLA Requirements for Employers: Coverage, Obligations and the Regulations

9/5/2026

Most of what gets written about the Family and Medical Leave Act is aimed at employees: what it is, how to ask for it, whether you get paid. This guide is written for the other side of the desk. If you work in HR, payroll or benefits, or you own a business approaching 50 employees, your questions are different. Are we covered? Which of our people are eligible? What do we have to send, and by when? What happens to health insurance and the employee's job while they are out? What do we have to keep on file?

The answers live in two places: the statute itself (29 U.S.C. 2601 and following) and the Department of Labor's regulations at 29 CFR Part 825. The regulations are long, but most day-to-day employer obligations come from a handful of sections, and this guide points to them by number so you can read the text yourself.

The Short Version

FMLA gives an eligible employee of a covered employer up to 12 workweeks of job-protected leave in a 12-month period for specified family and medical reasons, and up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness (29 CFR 825.200). The leave can be unpaid. During it, the employer must keep group health coverage in place on the same terms as if the employee were working, and at the end of it the employer must restore the employee to the same or an equivalent job.

The employer's work breaks down into six obligations:

Determine whether the organization is a covered employer
Post and distribute the general notice
Determine employee eligibility and send the eligibility and rights notices
Designate qualifying leave and tell the employee how much is being counted
Maintain group health benefits during the leave
Restore the employee and keep the records that prove all of the above

Each is covered below.

Requirement 1: Are You a Covered Employer?

Under 29 CFR 825.104, a private employer is covered if it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The 20 weeks do not have to be consecutive (825.105(e)).

Three groups are covered regardless of headcount:

Public agencies: federal, state and local government employers (825.104(a), 825.108)
Public elementary and secondary schools
Private elementary and secondary schools

How the headcount works

The counting rules in 825.105 are more generous than most people expect, and they are where small and mid-sized employers get the answer wrong.

Anyone on the payroll counts, whether or not they received pay that week. An employee whose name is on the payroll is considered employed each working day of that calendar week.
Part-time employees count the same as full-time employees as long as they are on the payroll.
Employees on leave count, including people on FMLA leave, other leaves of absence and disciplinary suspension, as long as the employer reasonably expects them to return.
Laid-off employees do not count, because there is no continuing employment relationship.
Partial weeks do not count for an employee who starts after the first working day of the week or leaves before the last working day.
Only US employees count. Employees working outside the United States, DC and the US territories are excluded from both coverage and eligibility counts.

Coverage is sticky

Once you meet the 50-employee/20-week test, you stay covered until you no longer meet it in either the current or the preceding calendar year (825.105(f)). An employer that hit 50 for 20 weeks in 2026 and then shrank is still covered for all of 2027.

Related companies

Normally the legal entity that employs the person is the employer, and a corporation is a single employer rather than a collection of divisions (825.104(c)). But separate entities are combined under the integrated employer test when the overall relationship shows common management, interrelated operations, centralized control of labor relations and common ownership or financial control. Joint employment (825.106) can also pull in staffing agency workers. A group of commonly owned companies, each with 30 employees, can easily be one FMLA employer.

On joint employment specifically, the Department of Labor published a proposed rule in the Federal Register on April 23, 2026 that would align the FMLA joint employer analysis with its FLSA analysis. It was a proposal, not a final rule, when this guide was written; check the Federal Register for its status before relying on either version.

Individual liability

The FMLA definition of employer includes "any person who acts, directly or indirectly, in the interest of an employer" (825.104(d)). The regulation says corporate officers acting in the employer's interest are individually liable for violations. HR and payroll managers should treat FMLA decisions as something with personal exposure attached.

Requirement 2: The General Notice

Every covered employer must post the FMLA notice conspicuously where employees and applicants can see it, even if no employee is currently eligible (825.300(a)). Electronic posting satisfies the requirement if it is equally accessible. A willful failure to post can draw a civil money penalty from the Wage and Hour Division for each separate offense; the current amount is stated in 825.300(a)(1) and is adjusted for inflation.

If you have any eligible employees, you must also include the general notice in your employee handbook or other written leave and benefits guidance, or, if you have none, hand a copy to each new hire. The DOL's prototype poster (WHD Publication 1420) can be used, and the notice must be provided in another language where a significant portion of the workforce is not literate in English.

Requirement 3: Eligibility and the Rights and Responsibilities Notice

Coverage is about the employer. Eligibility is about the individual employee. Under 29 CFR 825.110, an employee is eligible only if all three of the following are true:

They have been employed by the employer for at least 12 months (not necessarily consecutive)
They have at least 1,250 hours of service in the 12 months immediately before the leave starts
They work at a worksite where the employer has 50 or more employees within 75 miles

The hours test is measured using FLSA hours-worked principles, so paid vacation and holidays do not count while unrecorded work does. The 75-mile test is measured in surface miles over public roads. Each test has its own traps, especially for remote employees, rehires and salaried staff without time records.

Employers should note one practical consequence: you can be a covered employer and still have no eligible employees at a small branch, because the 50-within-75-miles test is applied worksite by worksite.

The five-business-day clock

When an employee asks for FMLA leave, or when you learn that an absence may be for an FMLA-qualifying reason, you have five business days, absent extenuating circumstances, to tell the employee whether they are eligible (825.300(b)). If they are not, the notice must give at least one reason.

The employee does not have to say "FMLA." Under 825.301(b), an employee giving notice "does not need to expressly assert rights under the Act or even mention the FMLA"; they need to give enough information for you to recognize a potentially qualifying reason. Supervisors who hear "I need next week off, my mother is going into surgery" have just started the clock for the employer.

Alongside the eligibility notice you must give a written rights and responsibilities notice (825.300(c)) that tells the employee, among other things:

That the leave may be counted against their FMLA entitlement, and which 12-month period you use
Any certification requirement and the consequences of not providing it
Their right to substitute paid leave, whether you will require substitution, and the conditions attached
Any requirement to pay their share of health premiums, and how
Whether they are a key employee who could be denied restoration
Their right to benefits maintenance and job restoration
Their potential liability for employer-paid premiums if they do not return

The DOL's optional Form WH-381 covers both notices. Running this notice sequence on time, every time, is the core task of a leave administrator; if that role sits with you, the Certified Leave Administrator credential is the one to look at.

Requirement 4: Designation

The employer, not the employee, is responsible for designating leave as FMLA leave (825.300(d)). Once you have enough information to decide, which is often after receiving the medical certification, you must send a written designation notice within five business days. Only one designation notice is required per qualifying reason per 12-month period, even if the leave is intermittent.

The designation notice must also tell the employee:

Whether you are requiring paid leave to be substituted, or counting leave under an existing paid leave plan as FMLA leave
Whether a fitness-for-duty certification will be required to return, and if it must address essential functions, the list of those functions
How much leave is being counted against the entitlement, in hours, days or weeks, when that is known. When it is not known in advance, as with unforeseeable intermittent leave, you must tell the employee how much has been counted when they ask, no more than once in a 30-day period

The DOL's optional Form WH-382 is the designation notice. If the leave does not qualify, a simple written statement saying so is sufficient.

Choose and publish your 12-month period

Under 825.200(b), an employer can measure the 12-month period four ways: the calendar year, any fixed 12-month year, 12 months forward from the date the employee's first FMLA leave begins, or a rolling 12 months measured backward from each date of use. Whatever you choose must apply uniformly. If you have never chosen, the method most favorable to each employee applies, and switching requires 60 days' notice to all employees (825.200(d)-(e)).

Requirement 5: Maintain Group Health Benefits

During FMLA leave, the employer must keep the employee's coverage under any group health plan "on the same conditions as coverage would have been provided if the employee had been continuously employed" (825.209(a)). Family coverage stays family coverage. Dental, vision and mental health benefits that are part of the group health plan stay in force. Plan changes and open-enrollment opportunities that apply to everyone apply to the person on leave as well.

The employee keeps paying their usual share (825.210). When leave is paid, that share comes out as a normal payroll deduction. When leave is unpaid, there is no paycheck to deduct from, so the employer must give advance written notice of how payment will be collected. The regulation allows several methods, including payment on the regular payday schedule or on the COBRA schedule, but the employer may not add an administrative fee or require more of an FMLA leave-taker than of other employees on unpaid leave.

If the employee's payment is more than 30 days late, coverage can be dropped only after written notice mailed at least 15 days before coverage ends (825.212). Many employers instead keep paying both shares and recover the employee share later, which the regulation permits.

If the employee does not return after leave for a reason other than a continuing serious health condition or circumstances beyond their control, the employer may be able to recover its share of premiums paid during unpaid leave (825.213).

Benefits other than group health, such as life insurance or holiday pay, follow your established policy for other kinds of leave (825.209(h)). Payroll and benefits must coordinate here; the COBRA administration guide covers how continuation coverage fits once the employment relationship actually ends.

Requirement 6: Restoration and Non-Interference

On return, the employee is entitled to the same position or an equivalent one (825.214). Equivalent means "virtually identical" in pay, benefits and working conditions, with substantially similar duties and authority, at the same or a geographically proximate worksite (825.215). Pay increases that went to everyone while the employee was out must be applied. Attendance-based bonuses can be denied only if they would also be denied to employees on equivalent non-FMLA leave.

There are limits. The employee has no greater right to reinstatement than if they had been working continuously, so a genuine layoff that would have happened anyway ends the obligation (825.216). The employer bears the burden of proving that.

The narrow key employee exception (825.217-825.218) applies only to a salaried, eligible employee among the highest-paid 10 percent of employees within 75 miles, and only when restoration would cause "substantial and grievous economic injury" to operations. The employee must be told of key employee status in the rights and responsibilities notice.

FMLA also prohibits interfering with, restraining or denying the exercise of rights, and retaliating against people who use them (825.220). The regulation names specific manipulations as interference, including moving employees between worksites to stay under 50 and reducing hours to keep someone below the eligibility threshold. Using FMLA absences as a negative factor in discipline, promotion or attendance points is also prohibited.

Employees can file a complaint with the Wage and Hour Division or sue directly, within two years of the violation or three years if it was willful (825.400). Remedies include lost wages and benefits, liquidated damages in an equal amount unless the employer shows good faith, and attorney's fees.

Requirement 7: Recordkeeping

FMLA records must be kept for at least three years (825.500(b)). For eligible employees, the records must show:

Basic payroll and identifying data: name, address, occupation, rate of pay, daily and weekly hours, additions and deductions, total compensation
Dates of FMLA leave, and hours of leave when taken in increments of less than a full day
Copies of written employee notices and all employer notices
Documents describing your paid and unpaid leave policies
Premium payments for employee benefits
Records of any dispute over designation

Medical certifications and medical histories must be kept as confidential medical records, separate from the personnel file (825.500(g)), and GINA and ADA confidentiality rules apply where relevant. Payroll typically holds most of the first three categories already; see our page on payroll recordkeeping requirements for the general retention framework.

FMLA for Small Businesses

The most common question from owners is whether FMLA applies below 50 employees. For a private employer, federal FMLA does not, unless the business is a private elementary or secondary school or is integrated with or jointly employing alongside other entities that together cross the threshold. Two cautions apply anyway.

First, state leave laws often reach much smaller employers. California's CFRA, for example, applies to employers with five or more employees, according to the state's Civil Rights Department. A growing number of states also run paid family and medical leave programs funded through payroll contributions; our state paid family leave roundup tracks them.

Second, other federal laws still apply. An employee with a disability may be entitled to leave as a reasonable accommodation under the ADA, which covers employers with 15 or more employees, and a work injury brings workers' compensation into play. The FMLA, ADA and workers' comp overlap guide walks through how the three interact.

Where FMLA Touches Payroll

FMLA is often run by HR, but payroll carries a large share of the execution:

Substitution of paid leave. FMLA leave runs concurrently with accrued paid leave when the employee elects it or the employer requires it (825.207). Payroll pays it under the normal paid leave policy.
Exempt employees. Unpaid FMLA leave, including partial-day intermittent leave, can be deducted from an exempt employee's salary without losing the exemption (825.206; 29 CFR 541.602(b)(7)). That exception applies only to leave that actually qualifies as FMLA leave; see our exempt vs. non-exempt guide.
Intermittent leave. Hours have to be tracked to the smallest increment your system uses for other absences. Our intermittent leave payroll guide covers the pay math.
Benefit deductions during unpaid leave, and arrears collection on return.
Disability and workers' comp payments that run concurrently with FMLA, where the employee cannot be forced to substitute paid leave (825.207(d)-(e)).

A Practical Compliance Checklist

Item	Regulation	Owner
Confirm coverage annually (50 employees, 20 weeks, current or prior year)	825.104-825.105	HR / payroll
Post the FMLA notice and include it in the handbook	825.300(a)	HR
Select and publish the 12-month measurement method	825.200(b)	HR
Eligibility and rights notice within five business days	825.300(b)-(c)	HR / leave administrator
Designation notice within five business days of having enough information	825.300(d)	Leave administrator
Collect employee premium share during unpaid leave	825.210	Payroll / benefits
Restore to same or equivalent position	825.214-825.215	Manager / HR
Keep records three years; medical documents separate	825.500	HR / payroll

Building the Skill Set

FMLA compliance fails at handoffs: a supervisor who does not recognize a leave request, a notice that goes out on day eight, a payroll deduction that stops when the paycheck stops. Fixing that is less about knowing the regulation exists and more about having someone in the organization who can run the whole sequence. The Certified Leave Administrator program is the site's credential for the HR and payroll staff who own that process.

Frequently Asked Questions

What are the basic FMLA requirements for employers?

A covered employer must post the FMLA notice, give eligible employees up to 12 workweeks of job-protected leave in a 12-month period for qualifying reasons (26 workweeks for military caregiver leave), send eligibility, rights and designation notices within the required time frames, keep group health coverage in place on the same terms during the leave, restore the employee to the same or an equivalent job, refrain from interference and retaliation, and keep FMLA records for at least three years. The detailed rules are in 29 CFR Part 825, mainly sections 825.104 through 825.220 and 825.300 through 825.500.

How many employees does a company need before FMLA applies?

A private employer is covered when it has 50 or more employees on the payroll for each working day in 20 or more calendar workweeks in the current or preceding calendar year. Part-time employees and employees on leave count. Public agencies and public and private elementary and secondary schools are covered regardless of size. Coverage of the employer is separate from eligibility of the employee: an employee must also work at a site with 50 employees within 75 miles, so a covered employer can still have ineligible employees at small, remote locations.

Does FMLA apply to small businesses with fewer than 50 employees?

Generally not, for private employers, unless separate companies are treated as one integrated employer or a joint employment relationship pushes the count past 50. But small businesses are frequently covered by state family and medical leave laws with lower thresholds, such as California's CFRA at five employees, and by state paid family and medical leave programs. The ADA may also require leave as a reasonable accommodation for employers with 15 or more employees. A small employer should check its state labor department before assuming it has no leave obligations.

Do employers have to pay employees during FMLA leave?

No. FMLA leave may be unpaid. The employee may elect, or the employer may require, that accrued paid leave run concurrently with FMLA leave under the employer's normal paid leave policy, and some states pay benefits through their own paid family and medical leave programs. What the employer must continue during unpaid leave is group health plan coverage, with the employee continuing to pay their usual share. Pay and premium handling during the leave should be explained in the rights and responsibilities notice.

What is the penalty for an employer that violates FMLA?

An employee can recover wages, benefits and other compensation lost because of the violation, or, if nothing was lost, actual monetary losses such as the cost of providing care, capped at 12 weeks of wages (26 for military caregiver leave). An equal amount can be added as liquidated damages unless the employer shows good faith and reasonable grounds. Courts can order reinstatement or promotion and award attorney's fees. Lawsuits must be filed within two years, or three if the violation was willful. Willfully failing to post the notice can also bring a civil money penalty.

How long must employers keep FMLA records?

At least three years, under 29 CFR 825.500. The records include basic payroll data, the dates of FMLA leave and the hours when leave is taken in less than full days, copies of notices, leave policy documents, benefit premium payments, and records of any designation dispute. Medical certifications and related documents must be kept confidential and separate from the regular personnel file. Records kept electronically must be available for inspection and copying if the Department of Labor requests them.