FMLA eligibility: do you qualify?

The Family and Medical Leave Act of 1993 is the closest thing the US has to federal maternity leave protection. It's been the law for 33 years. It still leaves about 40% of American workers without coverage.

The three FMLA tests

To qualify, all three must be true:

1. Your employer has 50+ employees within 75 miles

This excludes most small businesses entirely. A 30-person startup, a 20-person law firm, a small retail store — even if you've been there for years, you don't get FMLA. The 75-mile radius is from your worksite, not the company's headquarters. So a 200-person company with 10 employees at your remote location may or may not count, depending on the geography.

2. You've worked there at least 12 months

The 12 months don't have to be consecutive. Time away (up to 7 years for non-military) can count. But total time worked has to add to a year or more.

3. You've worked 1,250+ hours in the past 12 months

1,250 hours = ~24 hours/week average over the year. Most full-time workers easily clear this. Part-time workers, gig workers, and recent returners often don't. PTO and paid sick leave don't count toward the 1,250.

If you check all three boxes, you qualify for FMLA. If you fail any one, you don't.

Who FMLA leaves out

• Anyone at an employer with fewer than 50 employees within 75 miles.
• Anyone with less than a year of tenure.
• Anyone working under 24 hours/week on average.
• Independent contractors and freelancers (you're not an employee).
• Most domestic workers, agricultural workers, and seasonal workers — special exemptions apply.

If you're in one of these categories: state PFL programs sometimes have lower thresholds (especially CA, NJ, RI, NY which extend coverage to part-time and self-employed workers). Check your state's program — federal FMLA isn't the only path to job protection.

What FMLA actually does

Job protection

Your employer can't fire you, demote you, or change your role substantially because you took FMLA leave. They have to return you to your same or equivalent position when you come back. "Equivalent" means same pay, same benefits, same level — not a different team or worse role.

Health insurance continuation

Your employer must continue your health insurance while you're on FMLA leave, on the same terms you had while working. They can require you to keep paying your portion of premiums.

Continuous or intermittent leave

Most parents take FMLA continuously (one block of 12 weeks). You can also take it intermittently for medical reasons — say, taking a half-day every other week for postpartum therapy appointments. Continuous is the default for new parents.

What FMLA does NOT do

• Pay you. FMLA leave is unpaid. Your paycheck during the 12 weeks comes from elsewhere (state PFL, STD insurance, employer paid leave, savings).
• Give you more than 12 weeks. The 12-week cap resets each rolling 12 months. You can't bank weeks.
• Apply to bonding-only leave for the non-birthing parent in the same way. Both parents qualify for FMLA bonding leave, but they share if employed by the same employer.
• Help with childcare emergencies. FMLA covers serious medical conditions, not "daycare closed." For day-of childcare issues, you're on your own.

How to file

~3 months before due date

• Tell HR you're pregnant (legally protected; no obligation to disclose earlier than you want).
• Ask for the FMLA paperwork package. They legally must provide it.
• Confirm your eligibility with HR (they should provide a written notice of your eligibility status).

~30 days before leave (or as soon as known)

• Submit the FMLA leave request form.
• Submit medical certification (your OB completes part of this).
• Confirm your return-to-work date in writing. You can change it later, but having a target helps.

During leave

• Stay in light contact with HR. Confirm health insurance is continuing. Pay your premium portions on time.
• You don't have to respond to non-urgent work emails. Set boundaries.
• If extending leave, communicate at least 2 weeks before your scheduled return.

What your employer can and can't do

Can:

• Require medical certification.
• Require you to use accrued PTO concurrent with FMLA (so leave runs simultaneously, not sequentially).
• Continue requesting your premium contributions for health insurance during leave.
• Restore you to an equivalent position (not necessarily the exact same job, but equivalent in pay/benefits/level).

Cannot:

• Fire or demote you for taking FMLA leave.
• Refuse to give you the full 12 weeks if you qualify.
• Punish you, retaliate, or treat you worse upon return.
• Refuse to continue your health insurance.
• Require you to do work during leave.

If FMLA is denied or violated

If you believe your FMLA rights were violated:

• Document everything (emails, dates, conversations).
• File a complaint with the US Department of Labor's Wage and Hour Division (WHD). It's free and there's no time limit shorter than 2 years from violation.
• Consult an employment attorney. Many take FMLA cases on contingency.

FMLA violations are real but rare. Most employers comply because the financial penalties for violations are significant.

Based on the federal Family and Medical Leave Act of 1993 and current Department of Labor guidance. State laws may extend protections beyond federal FMLA. Not legal advice — consult an employment attorney for specific situations.