FMLA Compliance Guide for Employers (2026)

This FMLA compliance guide for employers (2026) covers FMLA compliance requirements, FMLA forms and notice timelines, medical certification rules, intermittent FMLA tracking, and the latest DOL FMLA opinion letters.

The Family and Medical Leave Act (FMLA) can feel straightforward at first: eligible employees get job-protected FMLA leave for certain family or medical reasons.

But in practice, FMLA compliance requirements for employers are full of edge cases.

Questions like:

• Do remote employees count in the 75 mile rule?

• Can we require employees to use PTO?

• What if a doctor’s note is vague?

• What counts as an “equivalent” job for reinstatement?

• Can we delay FMLA designation if an employee asks us to?

If you manage leave in-house, you already know the reality: FMLA is a compliance program, not just a time off benefit.

This guide walks through the full employer playbook for 2026: who’s covered, who’s eligible, what notices you must provide, how certification works, how tracking works, and the most common compliance mistakes (so you can avoid them).

Quick note: This article is educational and not legal advice. If you have a high risk situation, it’s worth looping in employment counsel.

Table of contents

1. What is FMLA (and what it isn’t)

2. Who is covered (covered employer rules)

3. Who is eligible (employee eligibility rules)

4. What reasons qualify for FMLA leave

5. How much leave employees can take

6. Intermittent and reduced schedule leave

7. FMLA notice requirements (forms, deadlines, and designation timeline)

8. Medical certification rules (cure period, recertification, and second opinions)

9. Employer obligations during leave (benefits, pay, updates)

10. Job restoration rules (and what “equivalent job” means)

11. Intermittent FMLA tracking (hours, increments, and variable schedules)

12. Common compliance mistakes (and how to fix them)

13. DOL FMLA opinion letters & updates (2019–2026)

14. Practical FMLA compliance checklist (2026)

15. FAQ (FMLA Compliance Questions Employers Ask Most)

1) What is FMLA (and what it isn’t)

FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid, job protected leave in a 12 month period for certain family and medical reasons.

FMLA also requires employers to:

• maintain group health benefits during leave (under the same terms)

• restore employees to the same or an equivalent job at the end of leave

• follow specific notice + documentation rules

What FMLA is not:

• It’s not wage replacement (it’s usually unpaid)

• It’s not the same thing as state PFML benefits

• It’s not optional once an employee qualifies

That last point matters a lot for compliance, and it shows up in recent DOL opinion letters (we’ll cover those below).  

2) Who is covered (covered employer rules)

An employer is generally covered by FMLA if they have:

• 50 or more employees for 20 or more workweeks

• in the current or previous calendar year

This includes private employers.

Public agencies (like schools and government employers) are usually covered regardless of employee count.

Common employer mistake: Thinking coverage is per location. It isn’t. Coverage is generally based on total employees, with special rules around employee eligibility tied to worksite radius (covered next).

3) Who is eligible (employee eligibility rules)

Even if you’re a covered employer, not every employee is eligible.

Employees must meet all three:

1. Worked for the employer for at least 12 months (not necessarily consecutive)

2. Worked at least 1,250 hours during the 12 months immediately prior to leave

3. Work at a location where the employer has 50 employees within 75 miles

The 50 employees within 75 miles rule (especially important in 2026)

This is one of the most misunderstood parts of FMLA.

This rule is about the employee’s eligibility, not whether the employer is covered.

Remote work makes this tricky. For remote employees, the “worksite” is not the home office. It’s typically the office they report to (or receive assignments from). This is especially important for FMLA eligibility rules and the FMLA 75-mile rule for remote employees.

We wrote a blog post on this topic here.

4) What reasons qualify for FMLA leave

An eligible employee may take FMLA leave for:

1. The employee’s serious health condition

   • A “serious health condition” generally involves either:

   • inpatient care, or

   • continuing treatment by a health care provider

     
     

2. Caring for a family member with a serious health condition

   • Family member includes:

   • spouse

   • parent

   • child (under 18, or 18+ with a disability)

     
     

3. Bonding with a new child

   • Birth, adoption, or foster placement.

     
     

4. Certain military family reasons

   This includes:

   • qualifying exigency leave (related to deployment)

   • military caregiver leave (up to 26 weeks)

5) How much leave employees can take

Most employees get:

12 workweeks of leave in a 12 month period

Military caregiver leave is different:

26 workweeks in a single 12 month period (special rules apply)

Employers can choose how to measure the “12-month period” (calendar year, fixed year, forward from first leave, or rolling backward), and that choice impacts how leave balances are calculated.

6) Intermittent and reduced schedule leave

Intermittent FMLA is when leave is taken in separate blocks of time for a single qualifying reason.

Examples:

• flare ups for a chronic condition
  recurring medical treatments

• episodic mental health conditions

Employers can require employees to follow call-in procedures, as long as it doesn’t interfere with FMLA rights.

Tracking intermittent leave (the part that causes the most payroll + compliance problems)

This is where teams tend to break down operationally:

• employees report time inconsistently

• managers apply different rules

• tracking is done in spreadsheets

• payroll doesn’t get accurate leave timecodes

When intermittent leave tracking is off, the “12 weeks” entitlement can be miscalculated, which is one of the fastest ways to land in an FMLA dispute.

7) FMLA notice requirements (forms, deadlines, and designation timeline)

FMLA isn’t just about eligibility. It’s also about the employer’s documentation process.

There are four core employer notice obligations:

1. General Notice (Poster + Handbook Language)

2. Eligibility Notice

3. Rights & Responsibilities Notice

4. Designation Notice

These notices are often referred to as the core FMLA forms for employers, and missing the timeline is one of the most common FMLA compliance issues.

You generally have two separate timing obligations once you learn a leave may be FMLA-qualifying:

1. Eligibility Notice + Rights & Responsibilities Notice

You usually must provide the:

• Eligibility Notice, and

• Rights & Responsibilities Notice

within 5 business days of learning the leave may be FMLA-qualifying (as long as you have enough info to assess eligibility).

In practice: As soon as HR becomes aware of the potential leave reason (employee request, manager report, or absence pattern), the 5-day clock starts. Employees don’t need to say “FMLA” to trigger protections. If they share enough information that leave may be for an FMLA reason, the employer should start the notice process.

2. Designation Notice (timeline depends on when you have enough information)

Once you have enough information to determine whether the leave qualifies (for example, after receiving a completed medical certification), you must provide the Designation Notice within 5 business days of that determination

What if you’re waiting on medical certification?

If you require certification, you can’t designate the leave until you have sufficient facts. Typically:

• employee has 15 calendar days to return certification (unless impracticable despite diligent good faith efforts)

• once returned, employer must review promptly and then issue designation

But importantly: You can’t delay designation once you have enough information. If the leave qualifies, it must be designated as FMLA (even if the employee asks you not to). This has been emphasized in DOL opinion letters and is a common enforcement theme.

8) Medical certification rules (cure period, recertification, and second opinions)

For most types of FMLA leave, employers are allowed to request medical certification to confirm that the leave qualifies.

This is one of the most common areas where compliance breaks down, not because teams are trying to do the wrong thing, but because the process gets inconsistent across HR, managers, and payroll.

Here’s what employers can (and can’t) do, plus a practical workflow to follow.

When employers can require medical certification

Employers may require medical certification for:

• an employee’s own serious health condition

• caring for a covered family member with a serious health condition

Medical certification isn’t used for bonding leave, but employers may request reasonable documentation of the family relationship/event consistent with their normal policies.

What employers can do

Employers can generally:

1. Require certification

After the employee requests leave (or you learn a leave may be FMLA-qualifying), you can request certification. Employees typically have 15 calendar days to return it (unless it’s not practicable despite diligent, good-faith efforts).

2. Require the employee to fix incomplete paperwork (“cure” period)

If the certification is missing required information, you can require the employee to fix it.

This is where the terms matter:

• Incomplete = a required question wasn’t answered

• Insufficient = information is vague/unclear/non-responsive

When this happens, employers must:

• tell the employee in writing what information is missing or unclear, and

• give them at least 7 calendar days to cure the deficiency (unless not practicable under the circumstances)

This “7-day cure rule” is worth including because it’s one of the most common mistakes HR teams make (denying too early or not documenting the deficiency clearly).

3. Authenticate or clarify (through HR, not the manager)

If needed, employers can contact the health care provider to:

• authenticate (confirm it was completed by the provider), or

• clarify handwriting/meaning of responses

Important: this should be done through HR/leave admin (or a health care professional acting for the employer), not the employee’s direct manager.

4. Request recertification in limited situations

Employers can request recertification, but there are guardrails:

• generally no more often than every 30 days, unless

• the employee requests an extension,

• circumstances change significantly, or

• the employer receives information that casts doubt on the stated reason for leave

5. Request a second (and third) opinion, in certain cases

If the employer has reason to doubt the validity of a certification, they may require:

• a second opinion (employer pays)

• and if the first and second conflict, a third opinion (employer pays)

The third opinion is typically final and binding.

This is rarely used in practice, but having it in your policy matters, especially for consistency.

What employers cannot do

Employers cannot:

• demand a diagnosis (a provider may include it, but you generally shouldn’t request it as a requirement)

• ask for information beyond the scope of what the certification form allows

• reject a certification simply because it feels “light” or the leave seems inconvenient

Also, employers should not allow managers to “investigate” medical details directly. That increases privacy risk and creates inconsistent handling.

Best practice: a simple certification workflow (that protects you)

If you manage leave in-house, this workflow is the easiest way to stay compliant:

1. Trigger: employee requests leave (or HR learns leave may qualify)

2. HR sends:

   • Eligibility Notice

   • Rights & Responsibilities Notice (including certification requirement)

3. Employee returns certification within 15 days

4. HR reviews certification:

   • if complete → proceed to designation

   • if incomplete/insufficient → send deficiency notice + 7 days to cure

5. HR issues Designation Notice within 5 business days once there is enough information to determine qualifying leave

6. Track leave usage and recertify only when allowed/needed

Optional but helpful: fitness-for-duty certifications

For leave due to an employee’s own serious health condition, employers may require a fitness-for-duty certification before the employee returns to work, as long as:

• the requirement is applied consistently, and

• the employee is notified of the requirement in advance

Many employers include this only for certain roles (for example, safety-sensitive roles). If you do, make sure your policy is clear and consistently applied.

9) Employer obligations during leave (benefits, pay, updates)

Once an employee is on FMLA leave, employers still have ongoing responsibilities, especially around benefits and communication.

Health insurance continuation

You must maintain the employee’s group health benefits during FMLA leave under the same terms as if they were actively working. That includes:

• the employer’s usual contribution, and

• the employee’s share of premiums

If employees normally pay part of the premium, you can require them to continue paying their portion during leave, as long as you:

• clearly explain how payments will be collected, and

• communicate the timeline and process up front

Pay during leave (FMLA vs. paid leave vs. state programs)

This is the part that causes the most confusion. FMLA itself is unpaid leave. That means FMLA provides job protection, not wage replacement. But an employee may still be paid during FMLA if:

1. They use employer-provided paid time off

Employees may be able to use (or be required to use) paid leave such as:

• PTO

• vacation

• sick time

This is often called “substituting paid leave” and is one of the main ways employees get pay while on FMLA.

2. They receive wage replacement from a state paid leave program

In many states, employees can receive partial pay from the state while out for:

• family bonding

• medical leave

• caregiving

These programs often run at the same time as FMLA, but the employee’s pay is coming from the state, not the employer.

3. They receive employer top-up pay

Some employers choose to supplement pay while employees are on leave (for example, topping up to 100% pay for parental leave).

Where employers get stuck (and why this matters)

The most common confusion is what happens when FMLA overlaps with state paid leave.

For example:

• Employee is on FMLA for bonding leave

• They are receiving state paid family leave benefits

• The employer wants to either:

  • require PTO at the same time, or

  • allow PTO only in certain scenarios

This is an area where rules can get tricky, and DOL has issued guidance clarifying how substitution of paid leave interacts with state paid leave programs.

Practical takeaway:

Make sure your policy clearly explains:

• whether PTO runs concurrently with state paid leave (and in what situations)

• whether employees can “save” PTO while receiving state benefits

• how payroll should treat employer top-ups, if offered

10) Job restoration rules (and what “equivalent job” means)

At the end of leave, employees generally have the right to return to:

• the same job, or

• an “equivalent” job

Equivalent doesn’t mean “similar.” It means substantially the same:

• pay

• benefits

• shift/schedule

• worksite

• duties and status

11) Intermittent FMLA tracking (hours, increments, and variable schedules)

FMLA provides 12 workweeks of leave, but in practice most employers track FMLA in hours especially for intermittent and reduced schedule leave.

Intermittent FMLA tracking is where most employers run into compliance issues, especially for hourly workers and variable schedules.

To stay compliant (and avoid entitlement mistakes), employers should define three things:

1. Convert the “12 weeks” entitlement into hours (especially for hourly workers)

A common mistake is assuming FMLA is always 480 hours (12 x 40). That’s only true for employees who normally work 40 hours per week.

DOL guidance allows employers to convert FMLA workweeks into an hourly equivalent for tracking, but the conversion must reflect the employee’s normal schedule. For example, DOL notes that a 50-hour/week employee would be entitled to 600 hours of FMLA in a 12-month period. 

Examples:

• Employee normally works 40 hrs/week → 12 x 40 = 480 hours

• Employee normally works 30 hrs/week → 12 x 30 = 360 hours

• Employee normally works 50 hrs/week → 12 x 50 = 600 hours

This becomes especially important for hourly workers with mandatory overtime or non-traditional schedules. Miscounting entitlement (even unintentionally) is a common source of disputes.

Practical takeaway:

For intermittent leave, track entitlement in hours, based on the employee’s normal weekly schedule.

2. Use the right increment (match payroll/timekeeping)

For intermittent or reduced schedule leave, employers must track FMLA leave in an increment that is no greater than the shortest increment used for any other type of leave, as long as it is not greater than one hour. 

So if your timekeeping system tracks leave in:

• 6-minute increments (0.1 hour)

• 15-minute increments

• 30-minute increments

…FMLA should be tracked the same way.

Practical takeaway:

Your FMLA increments should match your payroll/timekeeping system, and should never be stricter than your standard leave tracking.

3. Define how you measure the 12-month period (this impacts entitlement)

Employers can choose one method to measure the 12 months:

• calendar year

• fixed year (e.g., fiscal year)

• 12 months forward from first use

• rolling backward 12 months from use

Many employers choose the rolling backward method because it helps prevent employees from stacking leave across year boundaries, but it requires consistent tracking to implement correctly. 

Common tracking breakdown (what to avoid)

Most FMLA tracking errors happen when HR, managers, and payroll don’t share one source of truth:

• HR tracks in days, payroll needs hours

• intermittent leave is approved informally but never logged

• remote employee worksite eligibility isn’t documented

• state paid leave is not designated properly alongside FMLA

Even good teams get into trouble without a centralized workflow.

12) Common compliance mistakes (and how to fix them)

Here are the ones we see most often:

1. Delaying FMLA designation

2. Not issuing the right forms within 5 days

3. Inconsistent intermittent leave tracking

4. Rejecting certifications incorrectly

5. Retaliation risk (unintentional manager behavior)

6. Misapplying the 75 mile rule for remote employees

7. Confusing state PFML programs with job protection

13) DOL FMLA opinion letters & updates (2019–2026)

Since FMLA was enacted, the DOL has issued several opinion letters to clarify unclear situations. These DOL FMLA opinion letters help clarify how employers should apply FMLA rules in gray areas.

DOL clarified: you can’t delay designation of FMLA leave (2019)

In Opinion Letter (FMLA2019-1-A), the DOL confirmed:

• employers cannot delay designating leave as FMLA leave once they have enough information to determine it’s qualifying

• even if the employee would prefer not to use FMLA yet

• and employers can’t “expand” leave by labeling more than 12 weeks as FMLA 

In another 2019 Opinion Letter (FMLA2019-3-A), the DOL clarified that a collective bargaining agreement can’t be used to delay FMLA designation. If the leave qualifies for FMLA, employers must designate it as FMLA even if the employee prefers to use CBA-protected paid leave first.  

Practical takeaway:

If it qualifies, designate it. If you want to offer more time, you can, but it should be labeled separately (like personal leave or ADA leave), not “extra FMLA.”

State paid family leave + substituting paid leave (2025)

In Opinion Letter (FMLA2025-01-A), the DOL addressed whether FMLA “substitution of paid leave” rules apply when employees take leave under a state paid family leave program. 

Why this matters:

Many employers now operate in states with paid leave wage replacement. HR teams need clear rules for whether (and when) PTO runs concurrently, whether employees can preserve PTO while receiving state benefits and how payroll should handle overlapping programs.

Remote employees + the 75-mile eligibility rule (2023)

Remote and hybrid work created a real compliance gap: where is a remote employee’s “worksite” for FMLA eligibility purposes?

In Field Assistance Bulletin (FAB) No. 2023-1, DOL clarified:

• a remote employee’s home is not their “worksite” for the 75-mile / 50-employee eligibility requirement

• instead, the worksite is generally the office the employee reports to or the office from which assignments are made 

Practical takeaways:

If you have remote employees, your FMLA eligibility workflow should include:

• a consistent definition of “reporting office / assignment office”

• a reliable count of employees within 75 miles of that location

• documentation of how eligibility was determined (this is commonly challenged)

2026 DOL opinion letters (fresh guidance employers can operationalize)

On January 5, 2026, DOL Wage & Hour issued two FMLA opinion letters that employers should know about. 

1. FMLA2026-1: School closures less than a full workweek

This opinion letter addresses how to calculate FMLA leave usage for school employees when a school closes for less than a full week, and the employee would have otherwise worked during that time. 

Why it matters:

Many HR teams miscount partial-week closures, which can lead to inaccurate entitlement tracking.

2. FMLA2026-2: Travel time to/from medical appointments can count as FMLA

This one is broadly relevant to almost every employer.

In FMLA2026-2, DOL confirmed that employees may use FMLA leave not only for the appointment itself, but also for travel time to and from a medical appointment, when the appointment is related to:

• the employee’s serious health condition, or
  a qualifying family member’s serious health condition 

The letter also clarifies that medical certification does not need to estimate travel time for the travel time to potentially qualify. 

Practical takeaway (2026):

If you track intermittent leave, your HR and payroll systems should account for:

• appointment time plus associated travel time

• consistent documentation requirements so managers aren’t making ad hoc decisions

14) Practical FMLA compliance checklist (2026)

Here’s a simple checklist you can use internally:

Coverage & eligibility

• Confirm covered employer status

• Confirm employee 12 months / 1,250 hours

• Confirm 50 employees within 75 miles eligibility

Notices

• Poster/handbook notice is current

• Eligibility notice within 5 business days

• Rights & responsibilities notice within 5 business days

• Designation notice once determination made

Certification + tracking

• Standard certification workflow

• Defined increments for intermittent leave

• Clear tracking and reporting ownership (HR + payroll)

• Document all communications in one system

During leave

• Benefits continuation process

• Premium collection process (employee share)

• Regular cadence for updates (without pressure)

Return to work

• Job restoration plan

• Fit for duty certification process (if required)

• Manager script to reduce retaliation risk

15) FAQ (FMLA Compliance Questions Employers Ask Most)

Is FMLA paid leave?

No. FMLA is unpaid, job-protected leave. FMLA provides job protection and continued health benefits, but it does not provide wage replacement. Employees may still receive pay through employer-provided paid leave (PTO/sick time) or state paid family and medical leave (PFML) programs, depending on the situation.

Can employers require PTO use during FMLA?

Often yes. Employers can sometimes require employees to use available PTO, vacation, or sick leave during FMLA leave (this is called substituting paid leave), as long as it is consistent with the employer’s policy and the leave qualifies.

This gets more complex when the employee is also receiving state paid leave benefits, so it’s important to clearly document whether PTO runs concurrently with state programs.

What happens if an employee’s certification is incomplete?

If an employee submits an incomplete or insufficient FMLA medical certification, the employer cannot deny the leave immediately. Employers must:

• notify the employee in writing what information is missing or unclear, and

• give the employee at least 7 calendar days to correct (“cure”) the deficiencies (unless not practicable under the circumstances).

Do employees have to say “FMLA” to be protected?

No. Employees don’t need to use the term “FMLA” to trigger protections. If they provide enough information that the leave may be for an FMLA-qualifying reason (for example, surgery, recurring treatment, caring for a parent), the employer should start the FMLA notice process.

Can an employee ask an employer not to designate leave as FMLA?

Employees may ask, but employers generally should not delay FMLA designation once they have enough information to confirm the leave qualifies. If it qualifies, the employer should designate it as FMLA to stay compliant.

Do remote employees count for the FMLA 75-mile eligibility rule?

Remote employees can be eligible for FMLA, but the 75-mile rule is based on the employee’s worksite, not their home. For remote employees, the “worksite” is usually the office they report to or receive assignments from. This is an important area of FMLA eligibility compliance for hybrid teams.

Does travel time to and from a medical appointment count as FMLA leave?

In many cases, yes. DOL guidance confirms that travel time to and from a qualifying medical appointment can count as intermittent FMLA leave, in addition to the appointment itself.

What is the smallest increment employers can track intermittent FMLA leave in?

For intermittent FMLA, employers typically track leave in the smallest time increment used by payroll/timekeeping for other types of leave, as long as it’s not greater than one hour.

How do employers calculate FMLA hours for hourly employees?

Employers generally convert the 12-week entitlement into an hours bank based on the employee’s normal workweek (for example, 12 × 40 hours = 480 hours).

When must employers provide the FMLA Eligibility Notice and Rights & Responsibilities Notice?

Employers typically provide both within 5 business days of learning the leave may be FMLA-qualifying (as long as they have enough information to assess eligibility).

Conclusion

Managing FMLA compliance in spreadsheets creates risk fast. It only takes one missed notice deadline or one miscounted intermittent leave balance for an issue to escalate.

Aidora helps HR teams manage leave end-to-end (including FMLA) with automation, clean documentation trails, and clear tracking across HR + payroll.

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