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FMLA leave: Who’s eligible and for how long?


Did you know there are three different types of FMLA leave, when it comes to scheduling and duration?

The Family and Medical Leave Act, passed by Congress in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specific family and medical reasons for up to 12 weeks. It also allows up to 26 weeks to care for certain family members who are or were in the military.

Additionally, it ensures continuation of group health insurance coverage during this period under the same terms and conditions as if the employee had not taken leave.

Although it depends on the individual’s circumstances, having a solid understanding of the differences between the various FMLA types will help you understand what’s best for your employees if they need to take an FMLA-qualified leave of absence.

But first, let’s cover the basics of FMLA.

FMLA basics

FMLA leave is distinct from a personal leave of absence in which the employee chooses to take time off for something like a sabbatical. Here are the basic facts about the FMLA:

  • Private-sector companies with 50 or more employees in 20 or more work weeks during the current or preceding calendar year must comply.
  • Companies with fewer than 50 employees are not required to provide FMLA benefits.
  • However, providing those benefits may allow your company to be more competitive and therefore attract and retain workers more easily.

In order for an employee to be eligible for FMLA, not only must the employer meet the criteria, but the employee must also meet certain requirements.

  • Employees must have worked 1,250 hours in the previous 12 months to be eligible for FMLA with their employer; and
  • They must work at a location where the employer has at least 50 employees within 75 miles.

So, let’s say an employee becomes pregnant after working for an employer for only two months. Five months after that, she is put on bed rest because it’s a high-risk pregnancy. Since that employee does not meet the hour and location requirements, she wouldn’t be eligible for FMLA leave or be guaranteed her same job when she returns.

Eligible employees may receive 12 weeks of leave in a 12-month period for:

  • Birth, adoption or foster care of an infant or child within one year of birth or placement
  • Care of a spouse, child or parent who has a serious health condition
  • A serious health condition that means the employee is unable to perform essential job functions for a period of time
  • An urgent need resulting from the employee’s spouse, son, daughter or parent who is a covered military member on active duty

The additional military caregiver qualifying reason means an employee can receive up to 26 weeks of leave if they are caring for a service member who is a spouse, son, daughter, parent or next of kin of the employee.

Keep in mind that FMLA only guarantees that an employer will hold an employee’s job open during these 12 or 26 weeks. It does not make stipulations about salary. That’s where things can get a little convoluted.

Guidance from a reputable professional employer organization (PEO) or HR specialist can prove invaluable in helping you sort this out.

Now that we’ve covered the basics, it’s time to drill down a bit more into the different types of FMLA leave regarding scheduling and duration.

FMLA leave duration and scheduling

Within FMLA, there are three types of leave that a qualified employee may take: Continuous, intermittent and reduced schedule.

1. Continuous leave

Continuous leave under FMLA means the employee will be out between three days and 12 weeks. The most common example of continuous leave happens when a new parent takes 12 weeks off after the birth or adoption of a baby.

However, an employee can take baby-bonding time in smaller continuous chunks as long as it is approved by the employer. For example, if new parents are alternating time off from their respective jobs at different employers to care for their baby, they might each take four separate two-week periods off (rather than taking it all in consecutive weeks).

It’s important to note that an employer cannot force an employee to take continuous leave when intermittent leave or a reduced schedule is needed for the employee’s serious health condition. Nor can an employer force an employee to take more leave than they want or need. Failure to comply can cost your company, should a complaint be filed.

2. Intermittent leave

Intermittent leave occurs when the employee is out on an irregular schedule. It’s the least structured type of FMLA leave because the employee may not always be able to predict when they’ll be out. In this case, the employee or their family member has a health condition that makes the employee’s attendance at work unpredictable.

An example might be when an employee has received a cancer diagnosis and needs one week off for surgery, followed by one to three days a week after that for chemotherapy and recovery from those treatments.

In such a case, the employee may feel well enough to work four days during some weeks and only two days during other weeks. 

3. Reduced-schedule leave

Reduced-schedule leave means the employee needs to work fewer hours than the standard work week due to their own serious health condition or that of a spouse, son, daughter or parent.

An employee might have trouble getting up and moving due to severe arthritis, for instance, and need to come in at 10 a.m. rather than 8 a.m. Or an employee might need to leave the office early for a certain number of weeks to help care for a dying parent in hospice.

When FMLA gets complicated

FMLA can be confusing and complicated to administer because, as mentioned previously, it works in tandem with federal and state employment laws.

The law guarantees the 12 weeks off, but it does not provide compensation to employees on leave. Employees may have the option of receiving partial wage replacement from the state (if there is a program) or from private insurance.

Five states (California, New Jersey, New York, Hawaii and Rhode Island) allow employees on FMLA leave to apply for disability benefits. But when should you have an employee use their PTO for sick leave, and when do you request FMLA?

As long as it meets the criteria discussed, normally any absence that is greater than 3 days should be designated as FMLA. During this time, the employee can use PTO. If the employee works in a state that provides benefits, though, there may be special considerations for that particular state.

When PTO is used, it would be used in conjunction with the leave and not prior to the leave. For instance, if an employee goes out on a leave, the leave starts on the first day out rather than when PTO is used up.

Regardless of which states you operate in, it’s vital you keep accurate records and track employees’ time off, whether they are gone intermittently for hours at a time or continuously for weeks or days.

When it comes to managing FMLA leave and other HR-related regulatory compliance challenges, seeking the services of a PEO can be a wise move to help reduce your company’s risk and administrative burden. Learn more in our free e-book: 7 most frequent HR mistakes and how to avoid them.